Miners Can Prevent Fatal Accidents

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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With a momentary lapse of attention, any of us can cause a grave accident––at home, in a vehicle, on vacation, or at work. Miners must be ever vigilant for their own safety and the safety of others. The mining industry can reduce fatalities and injuries by encouraging employees to identify, correct, and report hazardous conditions. That is the current message of the Mine Safety and Health Administration (MSHA). Another message is that miners are legally protected for engaging in such safety activities, and retaliation by “any person” will be prosecuted.

Enlisting Miners to Advance Safety

Twenty metal and nonmetal mine fatalities have occurred since October 2013. The trend is increasing. In response, MSHA is conferring with stakeholders and mine training professionals about fostering vigilance in the workplace and encouraging miners to exercise their rights. In testimony before a congressional committee, the U.S. Secretary of Labor emphasized that miners are in the best position to recognize health and safety hazards. MSHA wants miners to be knowledgeable, empowered, and confident to raise safety and health issues. MSHA wants them to know they have government protection from safety-related employment discrimination.

MSHA’s website advises miners of their rights. Recently, MSHA published a Guide for Miners’ Representatives informing miners of how they may appoint representatives (any two miners can appoint a representative). In addition, the guide explains how representatives may participate in MSHA inspections, report hazards, and secure protection against employment discrimination.

MSHA stresses that its investigators and solicitors must ensure that miners are protected when they identify hazards to supervisors. Section 105(c) of the Federal Mine Safety and Health Act of 1977 prohibits discrimination against “miners,” “applicants for employment,” and “representatives of miners” for exercising statutory rights such as reporting hazards, requesting MSHA inspections, or refusing work believed to be unsafe. Discharged miners who complain to MSHA may be immediately reinstated to their jobs and remain reinstated until all hearings and appeals are completed on their cases––a process which can take years.

Discrimination Cases

Discrimination complaints are rising significantly––up 500 percent in the last decade. New cases increased by 25 percent in just the past year. MSHA headquarters is reviewing all cases that are filed. Some operators may not understand the standard of review. Operators are astounded if they find themselves in an MSHA case for a fully justifiable discharge (such as for fighting, attendance failures, and unsafe acts).

When a complainant alleges a discharge was due to demonstrable safety activity, MSHA will take the matter seriously. In court, MSHA will argue that discrimination occurred because other employees were not treated the same way for similar infractions. To avoid discrimination, MSHA urges mine operators to encourage and cooperate with miners to improve safety and reduce fatal accidents—which is everyone’s goal.

Note: This article was published in the May 27, 2014 issue of the Mine Safety eAuthority.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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