Walk-around denied

An MSHA inspector arrives at your operation and asks if you’ll accompany him during an inspection. A representative of miners, if there is one, also has “walk-around rights.” Does it matter if the inspector does not provide such opportunities for the company’s and miners’ representative?

In a June 2014 case, Big Ridge Inc., Federal Mine Safety and Health Review Commission Judge Thomas P. McCarthy discussed the importance of walk-around rights and how denial of those rights may make citations unenforceable.

The Federal Mine Safety and Health Act mandates this: “A representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the [MSHA inspector] during the physical inspection of any coal or other mine … for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.”

Then, there is this ambiguous statement: “Compliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this [act].”

Importance of rights

A decision to walk or not walk with an inspector is virtually automatic for an operator or a representative of miners. Both have strong interests in how an inspector observes conditions and how evidence is collected and preserved. Representatives will want to observe and possibly discuss with the inspector these questions:

■ Was the inspector in a position to fully observe or was view obstructed?

■ Could the inspector evaluate all
circumstances?

■ Did the inspector inquire of any miner?

■ Were questions properly worded and fairly presented?

■ Was the person consulted fully knowledgeable?

■ Did the question appear to be fully understood?

■ Did the inspector measure properly (from what point to what point)?

■ Were necessary tests performed
appropriately?

■ Were tested materials suitable for laboratory or other analysis?

■ Did the inspector take photos?

■ Were photos taken from representative orientation points?

■ How many photos were taken?

■ Did the inspector take contemporaneous notes to aid memory later?

When present, representatives can interject clarifications, provide additional information and help with comprehensive understanding of circumstances. Representatives can present exculpating or mitigating circumstances.

The operator and the miners have equal interests in seeing that inspections are conducted in a manner that allows for full review and evaluation later. More importantly, on-the-scene discussions can prevent citation issuance or facilitate better findings on negligence and gravity. Everyone benefits when facts can be ascertained by agreement during the inspection, rather than by contests afterward.

Deprivation of rights

Judge McCarthy had before him contested citations from an impact inspection, with multiple inspectors in different parts of an underground coal mine. Two citations were issued under circumstances where the company representative was prohibited from walking with the inspector and could not make observations or tests along with the inspector. There were no miners’ representatives either.

The company representative was instructed to call no one. The lead inspector told the company representative to drive him and two other inspectors to different locations in the mine. After dropping off an inspector named Hatcher, the lead inspector directed the company representative to drive on to a different location in the mine. Inspector Hatcher conducted his inspection unaccompanied.

Hatcher cited a violation for an accumulation of loose coal under a return roller of a conveyor belt. Had a company representative been present, he would have been able to make observations and could have taken a sample for combustibility analysis (affected by inert rock dust in loose coal). Also, he “would use a heat gun to determine the temperature of the frictional heat source and assess the likelihood of fire.”

Decision

The judge vacated the citation because 1) the operator was deprived of statutory rights and 2) the operator suffered prejudice.

To the first point, the judge said: “I decline to require Stephenson [the operator’s representative] to buck Miller’s [lead inspector’s] direct order and invoke or insist on the opportunity for one-to-one walk-around rights … as a means of securing the opportunity that the statute requires MSHA to give.” The judge also said: “The secretary failed to establish that affording respondent an opportunity to provide an escort for Inspector Hatcher would compromise any protection against advance notice of the inspection.”

The judge noted advance notice is legally prohibited in regular inspections and the prohibition is the same in an impact inspection. There was no reason the ordinary opportunity for representation could not be allowed.

To the second point, the judge applied an exclusionary rule from prior commission precedent. He excluded “all evidence that resulted from the unescorted inspection, including MSHA’s photographs and Hatcher’s testimony in support of the citation. The judge found prejudice because the operator “was denied the opportunity to observe, test and/or photograph the alleged combustible material and frictional heat source in the same condition as the inspector observed them.”

Take note

In this case, a lead inspector dropped off another inspector who conducted an unaccompanied inspection.

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.