MSHA investigation focus

MSHA conducts three major types of investigations: accident investigations, special investigations and discrimination investigations. Trends are changing, and MSHA is shifting its emphasis to certain areas over others.
Regular inspectors who are assigned to investigate the specific incident conduct these investigations. They are assigned from a different local because there may be issues related to whether or not local inspectors were doing their job. MSHA’s district office and headquarters supervise the work of the investigators, and an official report is issued.

The definition of “accident” in the Federal Mine Safety Act of 1977 is broader than fatalities. It includes “mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” By regulation, MSHA has broadened this definition to include such things as “entrapment,” rock outbursts, instability of impoundments and mine events that cause bodily injury or death to persons off mine property.

MSHA rarely conducts formal investigations into non-fatal accidents. This can be attributed to limited resources because accident investigations can take more than a year to complete.

Special investigations
Special investigators – not regular inspectors – conduct special investigations. While special investigators may have been regular inspectors, a special investigator needs to be specially designated and trained for this special role.
Special investigations are initiated most frequently after a company is charged with “unwarrantable failure” to comply with a mandatory standard. A majority of unwarrantable failure charges are reviewed to determine whether one or more managers or supervisors may have knowingly “authorized, ordered or carried out” the violation. If it appears on review that this was the case, then a special investigation is opened.

A special investigator will show up at the mine without prior notice. That does not mean the company is compelled to proceed at that moment because legal rights are at stake and persons involved are entitled to legal representation.

Special investigations aim at collecting evidence to establish personal culpability and liability of corporate managers and supervisors – and sometimes higher-level officials. Evidence is gathered in document requests and personal interviews with those who are targets of the investigation, and also with others who have information. The investigators prepare questions and write the answers given, as they are understood. There are no verbatim transcripts. Misunderstandings by both questioners and interviewees are all too common, particularly with unrepresented witnesses.

Special investigations are down these days – way down. For instance, in 2009, 125 cases arising out of special investigations resulted in personal civil penalties, and a few cases went to the Department of Justice for criminal prosecution. Last year, there were only five civil penalty cases and no referrals for criminal prosecution. The inspector general of the Labor Department recently criticized MSHA, finding that the agency is deficient in processing 70 percent of the special investigations from earlier investigatory work. Reduced prosecutions may take some pressure off operators, but it is important to understand why this is happening.

Discrimination cases
MSHA is prioritizing discrimination cases because the Federal Mine Safety and Health Act mandates deadlines on those cases. In 2012, MSHA processed 224 discrimination complaints – the highest number ever – from employees who claimed they were fired or treated adversely as a result of making complaints to the company or MSHA, refusing to perform an unsafe job, talking to inspectors or other protected safety activity.

MSHA wants to encourage miners to assert their rights without fear of retaliation now or later. MSHA has a statutory duty to enforce the provision of the Mine Act that states: “No person shall discharge or in any manner discriminate against, or cause to be discriminated against, or otherwise interfere with the free exercise of statutory rights of any miner, representative of miners or applicant for employment.”

The law does not require the complaining miner or job applicant to prove a safety concern was justified – only that the miner believed in it and made the concern known. Also, the law does not require a discharged miner to wait for possible relief until the complaint is fully heard and tried in court.

If MSHA believes there is a case to be investigated, the miner will be immediately reinstated to employment, and the reinstatement may last for years while the case is pending. Often, by agreement, the complainant’s reinstatement will be economic only and no return to work will take place.

Immediate reinstatement
Like discrimination cases, reinstatement cases are rising dramatically. MSHA’s solicitors filed successful claims for temporary “immediate reinstatement” in 40 percent of cases last year. For an operator, opposing temporary reinstatement may be to no avail. All MSHA must show is that the miner engaged in protected safety activity, that the miner was discharged, and that the discharge was arguably motivated, at least in part, by the protected activity. If MSHA’s investigation later shows no discrimination, the reinstatement ends.

Take note
In 2012, MSHA processed a record 224 discrimination complaints from employees who claimed they were fired or treated adversely for a variety of reasons, including making complaints to the company or MSHA.

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.