Miners’ rights to representation

The signature box on MSHA’s Representative of Miners Designation Form reads as follows: “I certify that I have been designated as representative by at least two miners who work at the mine. A copy of this form has been delivered to the mine operator. …”

Any two miners can pick a safety representative for employees at the mine, and one of the two may be the representative. A copy of the form must be posted and maintained on the mine bulletin board.

How can any miner get a buddy and the two of them designate a representative for the whole mine? Mine operators are familiar with requirements for obtaining a mine identification number. Many are not familiar with how miners can designate a representative. This is important because MSHA inspectors have been making a point lately to explain to miners it is a simple matter to designate a representative.

Miners’ rights misunderstood

If miners want a safety representative from their own ranks, they have every right to avail themselves of the regulations. Companies often do not understand miners’ rights to representation and have paid a high price for trying to block the process.

Designation of employee representatives has come up in many ways that confound companies. Here are three examples:

• A mine is in the midst of a union-organizing drive and two miners appoint a member of the campaigning union as representative of miners. The representative may or may not be an employee at the mine. Any two employees may appoint outsiders, as well as co-employees.
• An employee becomes subject to discipline – and ultimately discharge – yet gets himself or herself appointed miners’ representative, insisting on being contacted for every MSHA inspection so he or she can accompany the inspector.
• An employee suspects he will be disciplined and gets appointed as a miners’ representative. Subsequent discipline is claimed to be unlawful retaliation for exercise of rights of a miners’ representative.

Action/reaction

What happens if an operator refuses to recognize a representative, disciplines a miner around the same time as the designation, or refuses to accept the miner as a representative because the appointing miners have not been disclosed? All such employer actions may be redressed and penalized as unlawful “interference with miners’ rights.”

The Federal Mine Safety and Health Act provides that: “No person shall … interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment … because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.”

If a miner, representative or employment applicant believes he or she has been interfered with or subjected to discrimination because of present or past representation of miners, that person can complain to MSHA and an investigation will be initiated. A special investigator will be detailed to take statements, collect documents and do whatever else may be necessary to investigate the complaint. Investigators talk to hourly and management employees and possibly former employees.

How discrimination complaints proceed

To find unlawful discrimination, interference or retaliation, MSHA looks for three things: the miner engaged in protected safety activity or has protected status, such as being a miners’ representative; something negative or unwanted happened to the miner or representative; and there is a connection between the protected activity/status and the discipline, discharge or other negative consequence.

This third element is often presumed when the negative action occurred close in time to the protected status or activity.

If MSHA finds discriminatory treatment, interference or retaliation, Labor Department attorneys will bring a legal action before the Federal Mine Safety and Health Review Commission to cause the company to reverse the negative consequences (suspension, demotion, job transfer, discharge) and provide other relief such as back wages, return to prior position, posting of notices, and announcements to all miners. MSHA will also demand a civil penalty from the company of up to $70,000 per alleged violation. In extreme cases, the government may file an injunction action in federal court.

If a miner is discharged and MSHA believes the discharge was due to protected activity or status, MSHA will take action to have the miner immediately reinstated to his or her job. The miner will remain reinstated until all appeals have been exhausted – which can take years. Many times companies work out an agreement to pay the miner without a return to work.

No matter the outcome of a case, none of this is refundable. Sometimes when miners succeed, their employers must pay the fees of private attorneys who represent them.

Employer precautions

Mine managers need to fully understand miners’ rights. They need to consider them whenever they are taking personnel actions. Discipline, job changes or discharges that appear warranted may not pass the test if a complaint of discrimination is later filed with MSHA. If anyone in the company ever receives a letter from MSHA saying a complaint of discrimination will be investigated, the company needs legal assistance immediately to preserve rights and ensure fair treatment.

Take note

Sometimes when miners succeed, their employers must pay the fees of private attorneys who represent them.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.