 United States Department of Labor v. Wolf Run Mining Company, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES DEPARTMENT OF
LABOR,
Plaintiff-Appellee,
and
UNITED MINE WORKERS OF AMERICA, No. 06-1129 Intervenor/Plaintiff-Appellee,
v.
WOLF RUN MINING COMPANY,
INCORPORATED,
Defendant-Appellant. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert E. Maxwell, Senior District Judge.
(2:06-cv-00008-REM)
Argued: May 22, 2006
Decided: June 28, 2006
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Shedd and Judge Duncan joined.
COUNSEL
ARGUED: Albert F. Sebok, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Appellant. Jerald S. Feingold,

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UNITED STATES DEPARTMENT OF LABOR, Office of the Solic-
itor, Arlington, Virginia; Judith Rivlin, UNITED MINE WORKERS
OF AMERICA, Fairfax, Virginia, for Appellees. ON BRIEF: Brian
J. Moore, JACKSON & KELLY, P.L.L.C., Charleston, West Vir-
ginia, for Appellant. Rita R. Valdrini, United States Attorney, Betsy
C. Jividen, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia; Howard
M. Radzely, Solicitor of Labor, Edward P. Clair, Associate Solicitor,
W. Christian Schumann, UNITED STATES DEPARTMENT OF
LABOR, Office of the Solicitor, Arlington, Virginia, for the Secretary
of Labor. Grant Crandall, UNITED MINE WORKERS OF AMER-
ICA, Fairfax, Virginia; Robert Smith, PYLES, HAVILAND, TUR-
NER & SMITH, Logan, West Virginia, for Appellee/Intervenor.
OPINION
NIEMEYER, Circuit Judge:
In the wake of the catastrophic Sago Mine explosion in Upshur
County, West Virginia, in which 12 miners were killed and another
seriously injured, the mine operator, Wolf Run Mining Company, the
Secretary of Labor through the Mine Safety and Health Administra-
tion (the "Secretary" or the "Mine Safety Administration"), and the
United Mine Workers of America ("UMWA" or the "Union") became
enmeshed in a dispute over the protocol for investigating the cause of
the explosion. By law, representatives of both the mining company
and the miners are authorized to participate in any investigation con-
ducted by the Secretary. See 30 U.S.C. § 813(f).
In this case, while 92 of the 97 miners at Sago Mine, which is a
union-free mine, designated coworkers as their representatives, 2 min-
ers designated the UMWA to represent them during the investigation
and so advised the Mine Safety Administration. When the Mine
Safety Administration began its inspection of the mine, representa-
tives of the UMWA appeared on behalf of the two miners. Wolf Run,
however, refused to permit the Union representatives to enter the
mine, asserting that the Union did not have the right to be on the
premises as a representative of the miners because it had not won the
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right to represent the miners for collective bargaining purposes and its
representation of the two miners was an effort to bypass its unsuc-
cessful efforts to unionize the mine. Wolf Run also objected to the
designation of the UMWA by "anonymous" miners, i.e., miners
whose names were not disclosed to Wolf Run.
The Secretary commenced this action for a temporary restraining
order ("TRO"), preliminary injunction, and permanent injunction to
require Wolf Run to permit the UMWA access to the Sago Mine as
a miners’ representative. The UMWA filed a motion to intervene,
which the district court granted. Following two hearings, the district
court entered a preliminary injunction, requiring Wolf Run to permit
UMWA representatives access to the Sago Mine as a miners’ repre-
sentative.
Wolf Run filed this interlocutory appeal challenging the district
court’s preliminary injunction both on procedural and substantive
grounds, contending that (1) it did not receive sufficient notice for the
entry of a preliminary injunction as distinct from a TRO; (2) the
UMWA, which does not represent the workers under procedures
established by the NLRA, cannot, as a matter of law, represent miners
during the investigation of a mine explosion; (3) the procedures under
the Mine Safety and Health Act (the "Mine Act") for designating min-
ers’ representatives were violated when the Mine Safety Administra-
tion accepted the designation of the Union from "anonymous" miners;
and (4) the injunction deprived Wolf Run of its right to freedom from
an unlawful invasion of its property.
Analyzing Wolf Run’s contentions in the context of our interlocu-
tory review of a preliminary injunction, we conclude that even though
the anonymous designation of miners’ representatives raises a serious
legal question that has not been decided in the courts, the district
court did not abuse its discretion in entering the preliminary injunc-
tion. Accordingly, we affirm.
I
On January 2, 2006, an explosion occurred at Wolf Run’s Sago
Mine in Upshur County, killing and injuring miners who were work-
ing the mine. The mine was closed pending an investigation by the
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Secretary, along with state inspectors from West Virginia’s Office of
Miners’ Health, Safety, and Training. Under the Mine Act, the Secre-
tary is authorized to inspect the mine to investigate the cause of the
explosion. 30 U.S.C. § 813(a). The Mine Act also provides that a rep-
resentative of the mine operator and a representative of the miners
may participate in the investigation. Id. § 813(f). Regulations promul-
gated under the Mine Act define a representative of the miners as
"any person or organization which represents two or more miners." 30
C.F.R. § 40.1(b)(1).
Approximately two weeks after the explosion, on January 17, 2006,
the UMWA filed two documents with the Mine Safety Administra-
tion, allegedly evidencing the UMWA’s designation by two miners as
a miners’ representative under § 813(f). The first, entitled "Filing
Information for Representatives of Miners," was signed by three rep-
resentatives of the UMWA, and the second, entitled "Confidential
Designation," which called for the signature of a miner, was unsigned.
The names of two miners were, however, given to Mine Safety
Administration personnel. The Mine Safety Administration’s District
Manager verified that the two miners orally identified by the Union
were actually employed at the mine and wished to have the Union
represent them. He also received "Confidential Designations" from
the two miners, signed by them and designating the UMWA as their
representative. While the documents filed by the UMWA with the
Mine Safety Administration were turned over to Wolf Run, as
required by 30 C.F.R. § 40.2(a), the documents signed by the two
miners given directly to the Mine Safety Administration’s District
Manager by the miners were not. Wolf Run objected to the validity
of the designation, contending that it was illegally denied the right to
verify whether two or more miners properly designated the UMWA
as their representative.
At 3:30 p.m. on January 25, 2006, Mine Safety Administration per-
sonnel went to the Sago Mine to begin the underground portion of the
investigation. Wolf Run agreed to admit Mine Safety Administration
personnel to the mine, along with the Sago miners designated as min-
ers’ representatives by their coworkers, but it refused to permit
UMWA personnel to enter. The Mine Safety Administration sus-
pended the investigation and immediately filed this action for a TRO,
preliminary injunction, and permanent injunction to require Wolf Run
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to permit representatives of the UMWA access to the Sago Mine as
a miners’ representative.
The district court conducted a hearing that same day at 4:10 p.m.
Before the hearing, the parties exchanged briefs, and after the hearing,
the court broke to undertake some research and scheduled a second
hearing for 10:00 a.m. the next morning, January 26, 2006. To do so,
it entered an order announcing that the court would reconvene on Jan-
uary 26 "with respect to the Secretary’s Application for the issuance
of a Temporary Restraining Order or Preliminary Injunction."
Before the hearing on January 26, 2006, the parties exchanged sup-
plemental briefs. At the hearing, the court, in noting receipt of the
supplemental briefs, referred to the proceeding as one "seeking a
Temporary Restraining Order." At the end of the second hearing, the
court announced that it would issue an injunction effective until "fur-
ther notice through Order of this Court." When Wolf Run objected
because the order was not limited to 10 days, as required by Federal
Rule of Civil Procedure 65 for a TRO, the court stated, "While the
motion was for a temporary restraining order . . . the preliminary
injunction provisions are best served in this matter."
The court entered the formal order that same day pursuant to the
Secretary’s motion for "a temporary restraining order or preliminary
injunction," enjoining Wolf Run, "until further notice or Order of this
Court from refusing to permit the UMWA, as a representative of min-
ers pursuant to 30 U.S.C. § 813(f), to accompany representatives of
the Secretary of Labor on any physical inspection or investigation of
the Sago Mine and to participate in pre- and post-investigation confer-
ences at the mine site, when so requested by an authorized representa-
tive of the Secretary of Labor." The court concluded its order with the
statement, "[T]his Order shall be considered a preliminary injunc-
tion."
After the district court denied Wolf Run’s motion for a stay, Wolf
Run filed this appeal.
II
Unlike a permanent injunction, which resolves the merits of a
claim and imposes an equitable remedy because a legal one is inade-
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quate, see eBay, Inc. v. MercExchange, LLC, 126 S. Ct. 1837, 1839
(2006), a preliminary injunction maintains a particular relationship
between the parties in anticipation of a decision on the merits, pend-
ing completion of the litigation. Because a preliminary injunction is
temporary and is entered with only a preview evaluation of the merits,
without resolving them, the decision to enter a preliminary injunction
involves consideration of the relative harms to the parties in maintain-
ing a particular status between them until completion of the case. In
addition, because of the extraordinary nature of a remedy entered
before the merits are decided, the test for entering a preliminary
injunction looks beyond the immediate dispute to determine whether
such an invocation of equity is in the public interest. We have thus
articulated the test for a preliminary injunction as follows:
In entering a preliminary injunction, a court must con-
sider the following Blackwelder factors: (1) the likelihood of
irreparable harm to the plaintiff if the preliminary injunction
is denied; (2) the likelihood of harm to the defendant if the
requested relief is granted; (3) the likelihood that the plain-
tiff will succeed on the merits; and (4) the public interest.
Ciena Corp. v. Jarrard, 203 F.3d 312, 322 (4th Cir. 2000) (citing
Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d
189, 193-94 (4th Cir. 1977)) (internal quotation marks and citations
omitted).
In this case, the harm to a party by granting or denying a prelimi-
nary injunction is essentially the same as the consequence to a partic-
ular party in winning or losing on the merits. By the entry of a
preliminary injunction, the two miners are authorized to designate the
UMWA as their representative and the Secretary will have the benefit
of the UMWA’s assistance during the investigation. By the denial of
a preliminary injunction, the two miners are denied representation by
the UMWA, and the Secretary will have the benefit of whatever other
representative the miners designate. The harm to Wolf Run is only
harm if Wolf Run is correct on the merits. If the Union was properly
designated a miners’ representative, Wolf Run suffers no legally cog-
nizable harm by being required to permit it to accompany the Secre-
tary during the investigation.
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In any case, the relative harms are minimal on both sides. In the
absence of an injunction, the Secretary would lose the benefit of the
Union’s assistance but would not be prevented from conducting the
investigation. The injunction requires Wolf Run to permit the UMWA
to accompany the Secretary during the investigation, but the Union
does not have unfettered access and will always be accompanied by
a representative of Wolf Run.
Because the investigation may be completed before the litigation is
completed, the decision to grant a preliminary injunction may effec-
tively decide the merits of the case. This might have been one of those
cases where the district court, by amplifying the process to a minor
degree, could have decided the case finally under Federal Rule of
Civil Procedure 65(a)(2). But inasmuch as its decision was only pre-
liminary, our review essentially focuses on whether the district court’s
preliminary review of the merits led to an abuse of discretion, because
an independent review of the relative harms in this particular case
would tend to collapse into a review of the district court’s preliminary
view of the merits. Accordingly, we will address the issues, articu-
lated as follows:
(1) Did the district court err in entering a preliminary
injunction, rather than a TRO, in view of the notice
given in this case?
(2) Did the district court abuse its discretion in entering a
preliminary injunction based on its preliminary legal
rulings: (A) that the miners’ anonymous designation of
the UMWA does not fatally affect their designation;
(B) that a labor organization can represent two or more
miners for a mine explosion investigation even though
the organization is not the elected representative of the
miners for collective bargaining; and (C) that the
UMWA can enter the mine operator’s property to carry
out its functions as a miners’ representative?
We address these seriatim.
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III
As a procedural matter, Wolf Run contends that it did not receive
notice adequate under Federal Rule of Civil Procedure 65(a)(1) to
authorize the district court to enter a preliminary injunction.1 Rule 65,
which governs injunctions, provides that "no preliminary injunction
shall be issued without notice to the adverse party." Wolf Run asserts
that it received less than 24 hours’ notice. To decide whether the
notice was adequate, we determine whether Wolf Run had a fair
opportunity to oppose the application for an injunction. See Ciena,
203 F.3d at 319.
The parties apparently anticipated their dispute before this action
was commenced. They began exchanging information about who
would be participating in the explosion investigation on January 18,
2006, and Wolf Run began the preparation of its list of miners elect-
ing to represent themselves on January 19, a list that it attached to its
papers filed in this action. And on January 25, 2006, when the action
was commenced (apparently after 3:30 p.m.) and a hearing was
scheduled to begin at 4:00 p.m., Wolf Run was apparently ready with
its opposition to an injunction; it filed its brief before the hearing,
including attachments demonstrating facts relevant to arguments to be
presented at the hearing. The hearing actually began at 4:10 p.m.
During the course of the January 25 hearing, the court received
arguments from all parties including the UMWA and asked numerous
questions. After each party had completed its arguments, the court
concluded the proceedings with the following exchange.
The Court: Let’s take this matter under — the Court an
opportunity to look into some of the questions
of law that you gentlemen have so very profes-
sionally raised in this case. The Order can be
1A preliminary injunction, which may be entered only after notice, is
distinguished from a TRO, which may be entered without notice, only by
its duration — a preliminary injunction is of indefinite duration extend-
ing during the litigation, while a TRO is limited in duration to 10 days
plus one 10-day extension. Compare Fed. R. Civ. P. 65(a) with Fed. R.
Civ. P. 65(b).
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entered letting the United Mine Workers of
America to become a party to this litigation.
Would it be too quickly for us to suggest a
temporary order and the issues that are appli-
cable to it say tomorrow morning at 10:00?
* * *
[Counsel for Wolf Run]: That would be fine, Your Honor.
[Counsel for the Secretary]: That would be fine, Your
Honor.
[Counsel for UMWA]: Certainly.
The Court: All right. Let’s do that and the Court can look
into the basic issue that counsel has very
appropriately raised so that we will not be vio-
lating, or limiting, or misdirecting any rule of
law that would be beneficial.
Thus, without objection, the court reconvened at 10:00 a.m. on Jan-
uary 26, by which time the parties had submitted supplemental briefs.
At the January 26 hearing, further arguments were made by all par-
ties. Wolf Run made essentially two: (1) that the UMWA cannot be
a miners’ representative "based on two anonymous individuals," par-
ticularly when Wolf Run presented evidence that "92 of the 97 active
miners . . . want to represent themselves," and (2) that the UMWA,
as an affiliate of the AFL-CIO, was not an appropriate designee of
two miners because "all of this is brought about because the UMWA
does not like Wolf Run’s ultimate parent, ICG, because its subsidia-
ries are 100% union-free. . . . 92 [employees] . . . don’t want the
UMWA there. They want to represent themselves."
After the parties’ issues were argued to completion, the district
court indicated that it would enter an injunction allowing the UMWA
to represent two miners during the course of the investigation and that
it would enter an injunction enforcing that ruling. At that point, Wolf
Run objected as follows:
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Your Honor, just on the Order, we would just obviously, the
objection we have in general, but just the — the question of
again, we believe this is a TRO and we do think it should
be of a — a limited duration. And the rules refer, Rule 65,
to 10 days. So, I mean, to the extent that it is of unlimited
duration, we don’t think it complies with that rule. I just
want to mention, at least, note that objection.
In response, the court stated that it believed that "the preliminary
injunction provisions are best served in this matter," and the court
accordingly entered a preliminary injunction on January 26, 2006.
During the course of the proceedings on January 25 and 26, Wolf
Run never complained about an inadequacy of notice; never com-
plained about an inability to present facts, an affidavit, or a witness;
and never complained about an inability to present a legal argument.
Indeed, a review of the record reveals that all parties were apparently
satisfied with the completeness of their presentations, and the court
similarly observed:
Well, thank you all very much. Your briefs have been very,
very well drafted and presented. You certainly have
expressed in detail the position of your respective clients,
they can be very proud of the manner in which you have
represented them.
The inadequacy of notice for the entry of a preliminary injunction
was made by Wolf Run for the first time on appeal.
Rule 65 does not define what constitutes adequate notice for the
entry of a preliminary injunction. In Granny Goose Foods, Inc. v.
Brotherhood of Teamsters, 415 U.S. 423 (1974), the Supreme Court
held that the notice in the case before it was inadequate when it was
given by telephone to the adverse party on the same day that counsel
was served with all the documents and the hearing was held. The
Court stated, "The notice required by Rule 65(a) before a preliminary
injunction can issue implies a hearing in which the defendant is given
a fair opportunity to oppose the application and to prepare for such
opposition." Id. at 434 n.7 (emphasis added). The Court concluded
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that the same-day notice in that case did "not suffice." Id.; see also
Ciena, 203 F.3d at 319.
The notice requirement thus is more substantive than technical,
requiring that a defendant be given "a fair opportunity to oppose the
application," as distinct from a specified number of hours or days. See
Ciena, 203 F.3d at 319. In that regard we have noted that "broad dis-
cretion is given to the district court to manage the timing and process
for entry of all interlocutory injunctions — both TROs and prelimi-
nary injunctions — so long as the opposing party is given a reason-
able opportunity, commensurate with the scarcity of time under the
circumstances, to prepare a defense and advance reasons why the
injunction should not issue." Id. In Ciena, we held that the district
court could properly consider a motion for a TRO as a request for a
preliminary injunction, based on the fluidity of the relationship
between TROs and preliminary injunctions, focusing not on a specific
time period but on whether the opposing party had a fair opportunity
to oppose it. Id.
The Secretary contends first that Wolf Run waived its argument for
inadequate notice by failing to complain about a lack of adequate
notice in the district court. While Wolf Run did object to entering a
TRO of indefinite duration, noting that a TRO may be entered for
only 10 days, it did not complain about an inadequacy of notice, even
after the Secretary argued to the court that a preliminary injunction
was appropriate "since notice was provided to the adverse party."
Generally, an issue raised for the first time on appeal will not be
considered, unless the refusal to consider it would result in a funda-
mental miscarriage of justice. Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993). Wolf Run has not advanced any reason why the short-
ness of notice below prejudiced it to such a degree as to constitute a
fundamental miscarriage of justice. See Friends of Iwo Jima v.
National Capital Planning Commission, 176 F.3d 768, 774 (4th Cir.
1999). Wolf Run was able to submit two briefs with numerous attach-
ments to establish facts, and it was able to make all of its arguments.
Moreover, there was nothing in the timing or the nature of the pro-
ceedings that precluded it from calling witnesses had it so desired.
There was not only a hearing on the day the action was commenced,
but also one on the next day, with an intervening evening for prepara-
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tion. This course of proceeding, while abbreviated, did not amount to
a miscarriage of justice that would justify our recognizing it as an
issue on appeal when it was complained about for the first time on
appeal.
In addition to her waiver argument, the Secretary contends that in
any event the notice given was adequate. We agree. Wolf Run
received notice that the Secretary was seeking a preliminary injunc-
tion and was able to file an opposition to it, making all of its argu-
ments. The Secretary’s filing was captioned "Application for
Temporary Restraining Order and Complaint for Preliminary and Per-
manent Injunction," and the prayer for relief requested both a TRO
and a preliminary and permanent injunction — all of which notified
Wolf Run that a preliminary injunction was on the table. Indeed, Wolf
Run itself concluded its brief in opposition by stating, "Plaintiff can-
not meet any of the requirement[s] for a preliminary injunction under
Fourth Circuit law." (Emphasis added). Moreover, at the January 25
hearing, the district court announced, "Now, the application for Tem-
porary Restraining Order and the Complaint for Preliminary and Per-
manent Injunction is now before the Court," and when it scheduled
the January 26 hearing, its order announced that the hearing was on
"the Secretary’s Application for the issuance of a Temporary
Restraining Order or Preliminary Injunction." While it is true that
Wolf Run argued at the end of the second hearing that the court
should have only considered the application insofar as it requested a
TRO, that argument was advanced solely to limit the duration of the
injunction and not to contend that Wolf Run did not have a fair oppor-
tunity to respond to the motion for the injunction.
In these circumstances, we conclude that Wolf Run had a fair
opportunity to oppose the injunction and that the district court did not
abuse its discretion in electing to enter a preliminary injunction in lieu
of a TRO. In addition, we note that the district court assured Wolf
Run that if it had anything further, it could present the matter in the
ongoing proceedings. As the court stated:
Now if there becomes an abuse of time in this matter by
anybody, you come to the Court and we’ll act — act on it
and take it under consideration and we can resolve the prob-
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lem one way or the other, whatever is fair and just for every-
body.
IV
The Mine Act requires that the Mine Safety Administration con-
duct inspections and investigations, including investigations of mine
accidents. See 30 U.S.C. § 813(a). The question in this case is not
about mine safety or whether an investigation of the Sago Mine
explosion should take place, or even whether the mine operator and
the miners can have representatives present during the investigation.
Rather, the issue reduces essentially to a matter of protocol, centering
on how the interests of the mine operator and the miners are to be rep-
resented during an investigation of an explosion.
The Mine Act provides:
Subject to regulations issued by the Secretary, a representa-
tive of the operator and a representative authorized by his
miners shall be given an opportunity to accompany the Sec-
retary [during inspections and investigations].
30 U.S.C. § 813(f). The Secretary has promulgated regulations pursu-
ant to this section, defining a representative of miners to mean "[a]ny
person or organization which represents two or more miners at a coal
or other mine for the purposes of the Act." 30 C.F.R. § 40.1(b)(1). A
person or organization designated as a representative of miners must
fulfill the requirements of § 40.2, which provide in part:
(a) A representative of miners shall file with the Mine
Safety and Health Administration District Manager for
the district in which the mine is located the information
required by § 40.3 of this part. Concurrently, a copy of
this information shall be provided to the operator of the
mine by the representative of miners.
* * *
(c) All information filed pursuant to this part shall be
maintained by the appropriate Mine Safety and Health
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Administration District Office and shall be made avail-
able for public inspection.
30 C.F.R. § 40.2(a), (c). The information required by § 40.3 includes,
as relevant here:
(1) The name, address, and telephone number of the repre-
sentative of the miners . . . .
(2) The name and address of the operator of the mine
where the represented miners work . . . .
(3) A copy of the document evidencing the designation of
the representative of miners.
30 C.F.R. § 40.3(a)(1)-(3).2
230 C.F.R. § 40.3(a) provides in full:
(a) The following information shall be filed by a representative
of miners with the appropriate District Manager, with cop-
ies to the operators of the affected mines. This information
shall be kept current:
(1) The name, address, and telephone number of the repre-
sentative of miners. If the representative is an organiza-
tion, the name, address, and telephone number of the
organization and the title of the official or position,
who is to serve as the representative and his or her tele-
phone number.
(2) The name and address of the operator of the mine
where the represented miners work and the name,
address, and Mine Safety and Health Administration
identification number, if known, of the mine.
(3) A copy of the document evidencing the designation of
the representative of miners.
(4) A statement that the person or position named as the
representative of miners is the representative for all
purposes of the Act; or if the representative’s authority
is limited, a statement of the limitation.
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There is no provision that limits who may be the "person or organi-
zation which represents two or more miners."
The Secretary has provided the court with copies of two forms that
it has created and made available to miners’ representatives for filing.
One form, entitled "Filing Information for Representatives of Min-
ers," calls for the information required by 30 C.F.R. § 40.3(a)(1), (2),
(4), (5), and (6), and includes the statement, "I [the representative]
further certify that the accompanying document designat[es] the
above listed as representatives of miners at the mine listed above."
The second form, presumably the "accompanying document" referred
to in the first form and entitled "Confidential Designation," provides
evidence of the designation by a miner, as required by § 40.3(a)(3),
and states, in essence, "I [miner] designate [Representative] and any
other safety representative designated by [Representative] to serve as
my representative." The second document also states that the
employee may have his name remain confidential and not be dis-
closed to the mine operator.
To authorize her receiving miners’ names in confidence, the Secre-
tary points to the preamble to the regulations, 43 Fed. Reg. 290508,
290509 (July 7, 1978), which states — in response to a comment that
the designation should be filed with the national office rather than the
district manager so that the identity of the designating miners could
be kept confidential — that the document evidencing the designation
does not necessarily have to list the names of the designating miners.
(5) The names, addresses, and telephone numbers, of any
representative to serve in his absence.
(6) A statement that copies of all information filed pursu-
ant to this section have been delivered to the operator
of the affected mine, prior to or concurrently with the
filing of this statement.
(7) A statement certifying that all information filed is true
and correct followed by the signature of the representa-
tive of miners.
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Since issuing the regulations in 1978, the Secretary has interpreted the
regulations to permit anonymous designations.3
In this case, the Secretary asserts that the two miners designating
the UMWA did not wish to have their names disclosed to Wolf Run,
and the Mine Safety Administration has accommodated that request.
The facts about how that was accomplished remain somewhat murky
in the current record. At one point, the Mine Safety Administration
stated that it was never given a written document by which the two
miners designated the UMWA as their representative, asserting that
the Mine Safety Administration was only given the first document,
which provides the representative’s name and address and the coal
operator’s name and address. After oral argument, however, the Mine
Safety Administration corrected that information, advising the court
that the UMWA filed both forms, but that the second form designat-
ing the UMWA as a miners’ representative was not signed by the
miners. The Mine Safety Administration reported, however, that the
miners themselves supplied the signed designations directly to it, with
the request that their identity be kept confidential. The Mine Safety
Administration now asserts that the District Manager of Coal District
3 "maintains these signed documents under lock and key" and con-
firms that they have not been provided to Wolf Run.
In these circumstances, the Secretary takes the position (1) that the
first document filed by the UMWA, giving the names and addresses
of it and the coal operator, was adequate to fulfill the requirements of
30 C.F.R. § 40.3, and that Wolf Run thus received a copy of the docu-
ment evidencing the designation of UMWA as the miners’ representa-
tive; or alternatively (2) that even if the single document was not
evidence of designation, the Mine Safety Administration is authorized
to keep the second document containing the actual names of the min-
ers anonymous when the miners have so requested.
3The Secretary’s interpretation of her own regulations is generally enti-
tled to substantial deference unless it is plainly erroneous or inconsistent
with the regulation. See Dist. Mem’l Hosp. of S.W. N.C., Inc. v. Thomp-
son, 364 F.3d 513, 517 (4th Cir. 2004) (citing Thomas Jefferson Univ.
v. Shalala, 512 U.S. 504, 512 (1994); Udall v. Tallman, 380 U.S. 1, 16-
17 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945)).
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As a result, Wolf Run has not been given a copy of the miners’
signed designation, although it has been provided a copy of the first
document filed by the UMWA, which gives its own name and address
as well as the name and address of Wolf Run. Wolf Run contends that
this "anonymous" designation violates the regulations and that the
violation denies it the ability to verify for itself that the UMWA is
properly designated and remains so designated throughout the investi-
gation. It posits the possibility that if one of the miners were to leave
his employment with Wolf Run for whatever reason, it would have
no way of knowing that the UMWA had lost its authority to partici-
pate in the investigation.
The Mine Safety Administration has assured the court that two
miners have designated the UMWA to be their representative and that
these two miners currently work at the Sago Mine. For now, Wolf
Run does not contest these facts. Its argument challenges whether the
procedure created by the statute and regulations was followed in this
case and questions how it will remain protected by the Mine Act.
Section 40.3(a) of the regulations provides a list of information that
must be filed by the UMWA and "kept current," including (1) its
name and address, (2) the mine operator’s name and address, and (3)
"a copy of the document evidencing the designation of it as the repre-
sentative of the miners." The regulation also requires that any docu-
ment filed by the representative with the Mine Safety Administration
"shall be made available for public inspection," see § 40.2(c), and
copies of them must be provided to the mine operator, see §§ 40.2(a),
40.3(a)(6). A natural, straightforward reading of these regulations
might lead to the conclusion that the designation of UMWA that was
signed by the miners must be filed with the Mine Safety Administra-
tion and thereafter be made available to the mine operator. The Secre-
tary argues, however, that its first form (containing the names and
addresses of the miners’ representative and the miner operator) fulfills
the requirement of § 40.3(a)(3) because that form contains the sen-
tence: "I further certify that the accompanying document designat[es]
the above listed as representative of miners at the mine listed above."
Whether that reference in the first form "evidences" the miners’ des-
ignation or merely refers to the evidence of their designation is some-
thing we do not decide today.
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In this case, moreover, the UMWA did not file a copy of the min-
ers’ designation form — the miners themselves did. This leaves open
the question of whether the UMWA complied with the regulations by
not filing the documents itself, possibly in order to avoid having to
produce the document to the mine operator.
At this preliminary stage of the litigation, we need not resolve these
issues, and they remain for the district court to decide. It is sufficient
at this preliminary stage to rely on the facts that two miners did in fact
designate UMWA as their representative and that the two miners cur-
rently work at the Sago Mine. Whether the formalities of designation
have been complied with does not for now deny the miners the benefit
of the designation, although such a question could well become mate-
rial as the litigation progresses.
We conclude that the district court could rely on these facts to sup-
port the exercise of its discretion in entering the preliminary injunc-
tion in this case.
V
Wolf Run also contends, as what would appear to be its principal
concern, that a labor union which has been unsuccessful in winning
the right to represent its employees may not, under the Mine Act, be
designated by two employees, contrary to the will of the majority of
the miners. It contends that because the UMWA is a labor organiza-
tion, Wolf Run is not entitled to bargain or deal with it on behalf of
the miners for any purpose unless the organization represents a major-
ity of the workforce. To do so, it argues, would constitute an unfair
labor practice. See 29 U.S.C. § 158(a)(2). Cf. Emporium Capwell v.
Western Addition Community Org., 420 U.S. 50, 70, 71 (1975) (hold-
ing that no rights granted to individuals under Title VII are capable
of abrogating the provisions of the NLRA).
Wolf Run also maintains that the UMWA’s motives are transparent
and that its wish to serve as a miners’ representative under the Mine
Act is little more than an effort to get its foot in the door and begin
organizing the miners at Sago Mine. It contends that the UMWA’s
effort to "infiltrate its mine for purposes other than those contem-
plated by the Mine Act" is evidenced by a letter sent by the AFL-CIO
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to the Securities and Exchange Commission requesting that ICG, the
ultimate parent of Wolf Run, be investigated for security violations.
Wolf Run claims that the letter demonstrates that "the union is
launching a broad-based campaign against ICG, whose subsidiaries
are 100% union-free."
The true purposes attributed by Wolf Run to the Union should not
be too readily dismissed, because, as Justice Scalia observed in his
concurring opinion in Thunder Basin Coal Co. v. Reich, 510 U.S.
200, 220 (1994) (Scalia, J., concurring):
[C]ompliance [with the Mine Act] will compel the company
to allow union officials to enter [the company’s] premises
(and in a position of apparent authority, at that), notwith-
standing [the company’s] common-law right to exclude
them . . . [a]nd compliance will provide at least some confi-
dential business information to officers of the union.
But these are arguments that should be advanced to Congress to mod-
ify the Mine Act and the regulations promulgated under it. As now
written, the Act does not, in any way, restrict who may serve as a
miners’ representative, and the regulations under the statute define
"miners’ representative" as "any person or organization which repre-
sents two or more miners." 30 C.F.R. § 40.1 (emphasis added). Thus,
it appears that while an organization may exist to represent miners for
collective bargaining, nothing on the face of the Mine Act or its regu-
lations bars such an organization from being designated as a miners’
representative for mine inspections and investigations when at least
two miners make that designation.
Wolf Run does not take the position that the regulation itself is ille-
gal; rather, it argues that the regulation must be read together with the
NLRA and when that is done, one must conclude that a union cannot
act as a miners’ representative under the Mine Act for miners it does
not represent for purposes of collective bargaining. Interpreting the
law otherwise, it argues, would approve the selection of a union as a
miners’ representative under the Mine Act in circumstances that
would readily lead to an abuse by the union of its role in a nonunion
shop where a majority of the workers have not designated it as its rep-
resentative for collective bargaining purposes. This argument assumes
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that it is inevitable that the union will abuse its limited role as a min-
ers’ representative. Wolf Run has so far advanced no evidence to sug-
gest such abuse has occurred or is likely to occur, and remedies are
available if it does. While it may be a reason to subject the UMWA
to greater scrutiny in its performance of its role as a miners’ represen-
tative under the Mine Act, we do not decide, at this preview of the
merits, that the UMWA’s status as a labor organization seeking to
organize Sago Mine precludes the UMWA from performing as a min-
ers’ representative.
Despite the potential problems created by the designation of the
UMWA as a miners’ representative, we can find no legal limitation
in the statute or the regulations that deny such an organization from
representing two or more miners as a miners’ representative. Wolf
Run simply cannot contend that the UMWA is not an "organization"
as that term is used in 30 C.F.R. § 40.1.
At this point in the litigation, we need only be satisfied that in
entering the preliminary injunction, the district court did not abuse its
discretion. Without statutory or regulatory language limiting the word
"organization" to exclude labor unions as representatives for miners
under the Mine Act, we yield to the preliminary interpretation of the
district court, recognizing that it is also the interpretation of our fel-
low circuits in Thunder Basin Coal Co. v. Federal Mine Safety and
Health Review Commission, 56 F.3d 1275 (10th Cir. 1995), and Kerr-
McGee Coal Corp. v. Federal Mine Safety and Health Review Com-
mission, 40 F.3d 1257 (D.C. Cir. 1994).
VI
Finally, Wolf Run contends that ordering the UMWA on to its
property as the miners’ representative would violate its common law
property rights, as recognized in Lechmere, Inc. v. National Labor
Relations Board, 502 U.S. 527 (1992). In Lechmere, the Court held
that the NLRA confers rights only on employees, not on unions, and
that an employer cannot be compelled to allow nonemployee organiz-
ers on its property to distribute handbills.
The holding in Lechmere, however, is inapposite to the access
afforded by the Mine Act in this case. The Mine Act authorizes the
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Mine Safety Administration to conduct inspections and investigations
on a mine operators’ property, particularly the mine. Wolf Run has
not contended that such an authorization by the Mine Act violates the
law. Yet, as part of that authorization, Congress has also authorized
mine operators and miners to have their representatives participate in
such inspections and investigations. If the UMWA is properly desig-
nated as a miners’ representative under 30 U.S.C. § 813(f) and 30
C.F.R. § 40.1, then it is explicitly authorized to enter the mine for the
limited purposes articulated in the Mine Act. While a union may not
have rights to enter the employer’s property under the NLRA, miners
do have a right to designate representatives to enter the property
under the Mine Act.
VII
This litigation is at the very early stages, involving our review of
a preliminary injunction that directed Wolf Run to allow the UMWA
to serve as a miners’ representative in the ongoing investigation of the
Sago Mine explosion. At this point, the driving currents of this appeal
relate more to the parties’ collateral and future concerns about the
investigation than the investigation itself. The mine operator worries
that the UMWA will use its role as a miners’ representative to
advance its created purpose of organizing miners, and the Mine
Safety Administration and UMWA worry that Wolf Run will retaliate
against two miners who have designated the UMWA to represent
their interests during the investigation. In the absence of direct evi-
dence to support these concerns at this point, however, they remain
only speculative.
In entering the preliminary injunction, the district court did not
decide the merits of the case. But it did find that the Secretary has
established a sufficient likelihood of success on the merits, which,
when combined with the relative harms to the parties and the public
interest in proceeding promptly with the explosion investigation, jus-
tified issuing a preliminary injunction. In balancing the relative
harms, evaluating the likelihood of success, and discerning the public
interest, we conclude that the district court did not abuse its discre-
tion. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d
802, 812 (4th Cir. 1991).
AFFIRMED
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