Successfully working with your MSHA inspector

Every now and then, we receive a call from an operator who is upset about the way that a Mine Safety & Health Administration (MSHA) inspector acted during an inspection.

Sometimes, it is the language that’s used in conversations that raises concerns. In other cases, the inspector’s conduct is perceived to be abusive or harassing.

Obviously, this is not a situation that is conducive to creating an effective inspection environment. There are mechanisms for handling these types of situations, but operators are wise to consider their options carefully.

First, it should be noted that in our long experience with MSHA, these types of situations are the exception, not the rule. The vast majority of inspectors comport themselves in a professional manner. Some of the citations and orders that they issue may produce some aggravation or stress, but their behavior in the inspection is otherwise appropriate.

Given the dynamic of an inspection – outsiders coming in to your operation to point out what they think you are doing wrong – it is actually amazing that there is not more conflict than there is.

That said, circumstances do arise where inspectors step over the line. Over the years, this has included inspectors screaming and cursing at company personnel, making inappropriate comments to female office personnel, and behaving in a threatening or intimidating manner. None of this conduct has any place in an inspection setting, and the company is certainly within its rights to take steps to protect its personnel and its workplace from being subjected to that type of conduct.

Right of entry under The Mine Act

While inspectors’ unfettered right of entry to mine property is protected under the Mine Act, and threats and intimidation directed at the inspector in the exercise of their duties are crimes under Section 111 of Title 18 of the U.S. Code, there is no specific codified protection for operators. There are informal and formal mechanisms for addressing such situations. The options, however, are not limitless, and they depend in large part on the seriousness of the inspector’s conduct and the operation’s relationship with the agency.

For instance, many operators are familiar with the local field office supervisor, the inspector’s direct boss. In some situations, a measured call to the supervisor can produce a helpful reality check for the inspector that remedies the situation: “Don’t want to turn this into a big thing, but this behavior is making our people uncomfortable.”

This course of action, however, is not without its potential pitfalls. Operators are always concerned about the possibility of retaliation from the inspector or his colleagues if they put him on report. This is an understandable concern.

You should document your discussion with the supervisor and then pay close attention to future inspection activity. A sharp uptick in violation history might require an additional discussion. In the long run, there is always a cost-benefit analysis. Does the benefit of eliminating the inappropriate conduct from your workplace outweigh the threat of possible retaliation?

Some circumstances lean pretty clearly on the side of approaching the agency. For instance, if inspector conduct has raised the specter of intimidation or harassment, contact with the district office is probably a necessity. A report of such conduct to the district’s leadership or even MSHA headquarters will likely spur an investigation. In practice, such investigations are usually assigned to a supervisory special investigator who will come to the mine site and interview witnesses.

Given the seriousness of such an investigation, operators should be prepared for a comprehensive review. The agency will focus not only on the alleged inspector conduct, but also on all of the factors surrounding the inspection. Is the company simply retaliating for a tough inspection? Was the inspector provoked?

The Department of Labor’s Office of Inspector General (OIG) offers an additional avenue for review. As you can expect, this substantially raises the bar for the investigation. The OIG is authorized to conduct investigations of alleged misconduct by Department of Labor personnel. Choosing this path leaves very little flexibility on the part of the operator and MSHA.

Challenging inspector misconduct certainly raises the stakes in an operator’s relationship with MSHA. It requires careful consideration.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. You can reach them at william.doran@ogletree.com and margaret.lopez@ogletree.com.