Defending Mine Act Section 105(c) Discrimination Claims
Beware the Long Tail of Mine Act Discrimination Claims

Many mine operators will face a section 105(c) discrimination complaint from a disciplined or fired employee. Standard advice often focuses on the “do’s and don’ts” of establishing policies to help prevent discrimination claims and efficiently address them once filed. How many times, though, in setting up a program do mine operators focus on what is potentially the most precarious step: being forced by the Federal Mine Safety & Health Review Commission (FMSHRC) to temporarily reinstate the dismissed employee. With the risk that the Commission should decide the discrimination claim in the employee’s favor, permanent reinstatement will likely be necessary barring additional administrative process.

Reinstatement of an employee who is claiming discrimination under section 105(c) of the Mine Act raises several issues that mine operators must face well after the actual firing or disciplinary measure. For example, if the mine operator wishes to challenge reinstatement, additional time and resources will be required to further navigate the Commission process. And, what if a reinstatement order is violated?

The basics of a Mine Act discrimination case bear repeating. Section 105(c) of the Mine Act prohibits operators from discriminating against, discharging, or interfering with the rights of miners, representatives of miners, or applicants for employment in connection with “protected activities” including safety or health complaints, medical evaluations and potential transfers, or participation in Mine Act proceedings. Liability is triggered when, in response to protected activities, operators take “adverse actions” such as discharge, layoff, termination, demotion, reductions in compensation or benefits, interference, transfers to lower-paying positions, or refusing employment. Once the employee files a section 105(c) complaint with MSHA, the Secretary of Labor commences an investigation to determine whether discrimination occurred: a positive determination leads to MSHA filing its own complaint and proposed civil penalty with the FMSHRC; a negative determination still allows the miner to file a complaint with the FMSHRC within 30 days. If the Secretary finds that the miner’s complaint was not frivolously brought, the FMSHRC, upon the Secretary’s request and expeditiously decided by an Administrative Law Judge, will order the immediate reinstatement of the miner pending a final order on the Secretary’s complaint. As the term “not frivolously brought” is undefined, the FMSHRC enjoys latitude in determining whether reinstatement is warranted. It often does.

Companies should be prepared to address the discrimination claim process by putting in place well-crafted anti-discrimination and disciplinary policies; training supervisors and managers; educating employees of their rights; investigating complaints immediately; properly documenting the circumstances; and contacting outside counsel when an employee complaint is filed or anticipated to be filed. Situations become complicated when an employee neglects duties or exhibits unprofessional behavior following reports made to MSHA. Any adverse action, including termination, must be supported by verifiable facts independent of any protected activity. Adverse actions based on dubious evidence or pretexts as seen in the recent Estella v. Newmont USA Ltd. case will only bolster the employee’s chances of success later in the process.1

Even more complicated, however, can be the time when a terminated employee is temporarily reinstated pending resolution of the discrimination claim. The process generally follows this course: Within 10 days of receiving the Secretary’s application to FMSHRC for temporary reinstatement, the mine operator can request a hearing as to whether the miner’s complaint was frivolously brought, and the judge will issue a written order within seven days of that hearing. If no hearing is requested, the assigned judge, upon determining that the miner’s complaint was not frivolously brought, will immediately issue a written order of temporary reinstatement. The mine operator can then file a petition for review of the temporary reinstatement order with the Commission within five business days but the petition will usually not stay the reinstatement process.

If reinstatement of an employee is not desired, management in working with outside counsel, should ensure that the FMSHRC procedures are followed. Refusing reinstatement of an employee upon an FMSHRC order will only require more time and resources, as recently confirmed in the case of Secretary of Labor v. C.R. Meyer & Sons Company Inc., in which a company’s violation of a temporary reinstatement order resulted in a citation from the Secretary.2 If there is no place for the employee to work, as is often the case when temporary projects conclude, the mine operator should raise that evidence during its challenge to the reinstatement order.

1. In Estella v. Newmont USA Ltd., No. WEST 2016-0031-DM (Dec. 22, 2016) (William B. Moran, ALJ), a mine operator was unable to establish an independent, legitimate basis for the firing of an employee who had previously made safety complaints to MSHA. What was extraordinary about the firing, however, was that the adverse action was tied to another employee’s policy violation related to alcohol possession; in essence, a case of an employee’s being at the wrong place at the wrong time, and, in the words of the court, “a convenient pretext to apply a sledgehammer.”

2. Secretary of Labor v. C.R. Meyer & Sons Company Inc., No. WEST 2014-482-M (Dec. 9, 2016) (Margaret A. Miller, ALJ).

77.1606(c) Equipment Defects Affecting Safety
Ensure that Mining Equipment Defects are Corrected

The number one citation in 2016 for surface coal mines involved defective equipment not being corrected before use. As recently seen in a Commission case decided in June 2016, the failure to correct defective equipment, especially large and dangerous equipment, can amount to a “significant and substantial” violation with the added stigma of “unwarranted failure.”

The regulation at issue, 30 C.F.R. 77.1606(c), states that “Equipment defects affecting safety shall be corrected before the equipment is used.” This one line, however, should raise several considerations and questions. For example, the nature of the defect should be analyzed immediately. What type of equipment is affected? Tools? Machinery? Vehicles? Will the defective equipment create a hazard to persons if left in place or operated unwittingly by an employee? What future hazards could occur if the defect is uncorrected?

In any case, discovery of an equipment defect must be followed by scheduling a prompt repair, recording the defect, and notifying the appropriate employees. Also, check whether the equipment was previously inspected.

In Secretary of Labor v. Kentucky Fuel Corp., No. KENT 2015-528 (June 16, 2016) (William B. Moran, ALJ), a section 104(d)(1) order was affirmed, related to a significant and substantial violation of the standard caused by an unwarranted failure. The incident involved an excavator at a bituminous coal surface mine. The excavator had defects recorded in a pre-operational exam record book but were not corrected prior to the excavator being operated. In fact, three violations involving the excavator led up to the inspector’s issuance of the 77.1606(c) citation. These violations included a non-functioning back-up alarm, an insulator wire not properly bushed, and accumulations of combustible material such as oil, oil-soaked rags, and leaves. The MSHA inspector’s order noted that “failure to correct defects affecting safety prior to placing equipment into operation constitutes more than ordinary negligence and would reasonably likely contribute to a serious accident.” A specially assessed civil penalty of $21,900 was determined by Judge Moran to be appropriate.

75.400 Accumulation of Combustible Materials
Combustible Materials Remained “Serious Business” in 2016

Citations related to the accumulation of combustible materials ranked number one for underground coal mine violations in 2016. MSHA won’t ignore an item like coal dust even though it may be easy for busy mine operators to overlook.

The industry is well familiar with the 2010 explosion at Massey Energy’s Upper Big Branch Mine in West Virginia, leading to multiple deaths and massive penalties. Two factors caused the underground explosion: an unsafe buildup of methane due to inadequate ventilation, and the presence of coal dust. Although Massey received the brunt of the blame, MSHA was also criticized for failing to issue a “flagrant” violation even though hundreds of other citations were previously written. (Violations marked as “flagrant” impose fines of up to $220,000 for repeated failures to correct the most serious safety conditions.) Of the many citations issued for conditions at the Upper Big Branch Mine under Massey’s ownership, the biggest category was 30 C.F.R. 75.400, accumulation of combustible materials. The category related to mine ventilation plans, submission, and approval was third.

The requirements of section 75.400 seem simple: “Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.” Compliance, however, requires a careful eye and being mindful of how a little amount of coal dust can create a major hazard.

Underground coal mine operators should make it a regular practice to clean up and remove even small accumulations of coal dust and other combustible materials. It only takes 0.005 inches (approximately the thickness of a sheet of paper) of coal and float coal dust on top of rock dust to propagate an explosion. It is also important to remember MSHA’s standard at 30 C.F.R. 75.402 requiring, subject to some exceptions, rock dusting for underground areas within 40 feet of all working faces and crosscuts less than 40 feet from a working face.

In addition to the accumulation of coal dust and other combustible materials on broad surfaces and obvious places, mine operators must also check corners and less visible parts of equipment where dust can settle and accumulate quickly. In a recent case, Secretary of Labor v. Gateway Eagle Coal Co., LLC, No. WEVA 2015-987 (July 12, 2016) (William B. Moran, ALJ), the court addressed a settlement related to a section 104(a) action involving the accumulation of dry coal fines under a belt take-up located in an underground bituminous coal mine. Judge Moran noted in his discussion that accumulation violations “are serious business” and that the intent of section 75.400 is prevention, not just minimization, of accumulations.

56.14107(a) Guards for Moving Machine Parts
Citations for Improper Guarding Can be Inconsistent

The sixth most common violation for surface metal mines in 2016 was related to guarding for moving machine parts. Guarding is a common violation year after year, industry-wide, and occasionally leads to fatalities. Enforcement for alleged violations of the regulatory requirement at 30 C.F.R. 56.14107(a) can also be inconsistent, from one inspector to another, as the regulatory language is rather subjective.

Section 56.14107(a) states that “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” The measures necessary to properly “protect” workers, however, are often left to the judgment of mine operators and the watchful eyes of mine inspectors. Commentary and cases on this subject matter express a strong preference for a conservative approach, by fully guarding all moving machine parts. Practical advice states that the potential for a MSHA violation exists if a small child could touch anything dangerous. In some cases, MSHA inspectors will go to lengths to physically demonstrate how someone could possibly be injured.

A recent case demonstrates how the regulation is subjective. In Secretary of Labor v. Climax Molybdenum Co., No. WEST 2015-0838-M (Sept. 19, 2016) (Richard W. Manning, ALJ), a section 104(a) citation was issued at the Climax surface metal mine in Colorado. The violation was due to failure to have sufficient guarding to prevent miners from coming into contact with mills (rotating cylinders) or openings in the floor around the mills. While waist-high handrails with warning signs and, in some locations eight-foot-high metal guarding were in place to prevent access to hazardous areas, there was still a risk of injury – according to the Secretary.

Although the company had a policy prohibiting miners from walking or working in the areas inside the handrails unless the mills were locked and tagged, this was deemed to be irrelevant. The lack of prior enforcement was also raised by the company. The court nevertheless found that moving machine parts were not properly guarded, and affirmed a $263 penalty.

The subjective nature of guarding violations has led to a range of cases that require the judgment of mine operators. Guidance provided in some caselaw, for example, suggests that guarding is required when there is a “reasonable possibility of contact and injury” determined, in part, by factors including “the vagaries of human conduct.”1 Making the wrong judgment will often lead to future penalties.

1. See Nelson Quarries, Inc., 36 FMSHRC 3143 (Feb. 2014) (ALJ), citing Thomson Brothers Coal Company, Inc., 6 FMSHRC 2094 (Sept. 1984)

56.9300(b) Berms and Guardrails
Berms and Guardrails are Critical to Safety: Be Sure They are Adequate

Berms and guardrails located on inclines having certain grades and heights are necessary to prevent accidental drops resulting in injury. It is imperative for mine operators to ensure that these safety features are of sufficient height, and this requires an assessment of the sizes of on-site mobile equipment. Failure to comply with 30 C.F.R. 56.9300(b) was among the most common citations issued at sand and gravel surface mines in 2016.

Section 56.9300(b) requires that “Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.” This provision follows the more general requirement, found in section 56.9300(a), that berms and guardrails are appropriate where “a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.”

In a case decided on December 28, 2016, a specially assessed civil penalty of $2,550 (reduced from $3,400) was imposed because berms on a loading ramp were too low and made of loose, unconsolidated material. In Secretary of Labor v. Acha Construction, LLC, No. WEST 2016-27-M (Dec. 28, 2016) (Alan G. Paez, ALJ), a section 104(d)(1) order was issued at the Crusher 1 construction sand and gravel pit in Nevada. The berms on a six- to seven-foot-high ramp used by front-end loaders had berms that were below mid-axle height. Specifically, the berm heights ranged from 9 to 25 inches, while the mid-axle heights of the mine’s two front-end loaders were 28 and 32 inches.

Mine operators should also be aware that MSHA and some ALJs have disagreed with each other as to whether berms or guardrails should be required on truck scales. MSHA has previously stated that scales are parts of the “roadway” and therefore sections 56.9300(a) and 56.9300(b) are applicable. Some Commission precedent now exists, however, exempting scales from the berm and guardrail requirements in certain cases, such as when the scale is not located on the main haulage way.

57.3200 and 57.3360 – Correction of Hazardous Ground Conditions and Use of Ground Support
Ground Conditions Warrant Particular Observation and Care

Violations related to hazardous ground conditions and inadequate ground support ranked, respectively, numbers one and two for violations at underground metal mines in 2016. Regulatory provisions set forth at 30 C.F.R. 57.3200 and 30 C.F.R. 57.3360 address ground falls and other hazardous conditions that, if left unchecked and without support to prevent future hazards, can cause significant injuries and will not be overlooked by MSHA inspectors.

Section 57.3200 requires that “Ground conditions that create a hazard to persons shall be taken down or supported before other work or travel is permitted in the affected area. Until corrective work is completed the area shall be posted with a warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry.” While a ground fall by itself is not sufficient evidence of a violation, a mine operator could be liable if a detectable hazard existed prior to the ground fall and a reasonably prudent person would have made that discovery.

Likewise, section 57.3360 states that “Ground support shall be used where ground conditions, or mining experience in similar ground conditions in the mine, indicate that it is necessary. When ground support is necessary, the support system shall be designed, installed, and maintained to control the ground in places where persons work or travel in performing their assigned tasks.”

It is important to recognize that loose ground conditions (able to be pried free by hand or scaling bars) may not always be obvious, but if they are detectable then the risk for a violation exists. Areas in question should be examined for loose ground by conducting sounding tests, searching for visible fractures or sloughed material, taking notice of any unusual sounds, and discussing with mine employees their operating experiences.

The penalties for violating sections 57.3200 and 57.3360 can be significant. For example, in Secretary of Labor v. Coeur Alaska, Inc., Nos. WEST 2015-346-M, WEST 2015-401-M, WEST 2015-422-M, WEST 2015-470-M (Sept. 20, 2016) (David P. Simonton, ALJ), 10 citations were issued at the underground Kensington gold mine in Alaska. The section 57.3200 violations included failure to take down, support, or barricade hazardous ground conditions including rocks, and failure to correct or warn of ground conditions that pose a hazard to miners. The section 57.3360 violations included failure to maintain wire mesh necessary to reduce scaling, damaged wire mesh, missing bolts, and failure to maintain ground control. The Secretary designated several of the violations as being “significant and substantial” and issued specially assessed penalties. The court ordered a total penalty of $159,634, reduced from the original assessment of $199,047.

In these cases, the Secretary bears the burden of proving, by a preponderance of the evidence, that a reasonably prudent person familiar with the mining industry and the applicable standards would have recognized the hazardous condition. A preponderance of evidence means that the evidence supporting the violation is more convincing than the opposing evidence.

75.370(a)(1) Mine Ventilation Plans
Check Damaged Equipment for Ventilation Plan Compliance

Violations related to mine ventilation plans were the second-most common citation for underground coal mines in 2016. Ventilation plans, as specified in 30 C.F.R. 75.370(a)(1), are critical to health and safety, are mine-specific, and are adopted by the mine operator and approved by the MSHA district manager. Equipment used in underground mines comprises part of the overall plan.

Section 75.370(a)(1) directs mine operators to “develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane and respirable dust and shall be suitable to the conditions and mining system at the mine.” The regulations also specify certain content and map requirements. In developing a ventilation plan, mine operators should consider multiple factors including the mine’s design, airflow modeling, use of diesel equipment, and other sources of air contaminants.

A case in 2014 demonstrated how improperly maintained equipment can violate a ventilation plan. In Secretary of Labor v. Webster County Coal, LLC, No. KENT 2012-438 (Feb. 13, 2014) (David P. Simonton, ALJ), penalties totaling $4,946 were upheld related to a violation of the mine ventilation plan for the Dotiki Mine in Kentucky. Specifically, automatic dump dust skirts were missing from roof bolting machines. These were required by the mine’s ventilation plan, and the inspector determined that injury was reasonably likely. If not replaced, the missing dust skirts would expose roofbolter operators to an increased amount of respirable dust.

Mine operators should therefore view defective equipment covered under a ventilation plan as being critical not only due to the lost use of the equipment, but because the buildup of air contaminants in confined spaces can quickly result in serious health effects.

77.404(a) Maintenance of Equipment
MSHA Inspections Can Yield Multiple Violations for Unsafe Equipment

Many Mine Act regulations address equipment and the condition of equipment. A general provision, 30 C.F.R. 77.404(a), empowers MSHA inspectors to levy fines due to equipment that has not been properly maintained. It is in the interests of mine operators to ensure that equipment is properly maintained and, if necessary, immediately taken out of service. Section 77.404(a) citations ranked high for surface coal mines in 2016, at number four.

Section 77.404(a) states that “Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.” Compliance with the provision is critical because of the potential hazards facing equipment operators. Mine operators should therefore ensure that pre-operational exams are conducted and policies are in place requiring that equipment is maintained in a safe condition.

When an inspector finds a section 77.404(a) violation (which does not affect the enforcement of other safety standards and is usually used when the equipment’s condition is not covered by other regulatory provisions) a citation will be issued. Another citation could be issued if the equipment is not removed from service immediately. The inspector should, however, give the mine operator a reasonable amount of time to comply before issuing a subsequent citation.

Of special concern to mine operators should be equipment that, if not working properly, could contribute to a serious accident. These items especially include safety devices on mobile surface equipment such as horns, headlights, tail lights, brake lights, and lighting systems. Back up alarms, in particular, must be checked to ensure that they are able to be heard above the surrounding noise; a somewhat subjective requirement. In addition to mechanical defects, equipment can become disabled by accumulations of coal dust, mud, grease, and oil.

A recent case decided on May 31, 2016 demonstrates how section 77.404(a) can be used by inspectors to find multiple violations at a facility in a short amount of time, totaling high penalty amounts. Notwithstanding the cautions expressed above with respect to safety, the case Secretary of Labor v. Kentucky Fuel Corp., No. KENT 2015-575 (May 31, 2016) (William B. Moran, ALJ) also illustrates that when a mine operator faces multiple section 77.404(a) violations, the actual potential harm should be carefully analyzed to perhaps have some penalty amounts reduced.

In Kentucky Fuel, a section 104(d)(1) order was issued at the Beech Creek Surface Mine in Kentucky related to nine alleged defects involving an excavator. These defects included a loose engine access handrail, a damaged lower step, damaged engine compartment engine lids, loose fuel tank mounting bolts, an out-of-bracket engine cover safety latch, a missing windshield wiper blade, a loose cab access handrail, engine oil leaks, and a hydraulic oil leak. The inspector’s determination of unwarrantable failure was based on a consideration of the alleged violations together (emphasis added). Upon review, however, the ALJ found that only some of the defects were actual violations, and those violations did not present significant dangers or “aggravated conduct constituting more than ordinary negligence.” When viewing these violations individually, and not collectively as the inspector had done, there was no basis for “unwarrantable failure.” The original $41,500 special assessment was first reduced to $9,122 and was finally reduced to $2,000.

If you are facing an order due to multiple equipment condition violations, outside counsel should be retained to scrutinize whether the alleged defects present significant dangers or constitute an unreasonable degree of negligence.

Corporate Strategy & Regulatory Analysis May 1, 2017

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