What to do when MSHA demands documents

By and |  October 2, 2017

Imagine you are a quarry manager reviewing your office mail, and you see that you have received a letter from the Mine Safety & Health Administration (MSHA). The letter states that the loader operator you terminated last month has filed a discrimination complaint with MSHA under section 105(c) of the Federal Mine Safety & Health Act. An investigator asks that you contact him as soon as possible.

Attached to the letter is the miner’s handwritten complaint to MSHA. The miner says nothing in the complaint about retaliation for any safety activity. Instead, he says he thinks he was wrongfully terminated because of his union activity.

You know that you terminated him for repeatedly arriving late for work. You contact the investigator as MSHA’s letter requests. The investigator tells you that he would like to interview people at the mine, but first he would like a copy of a number of documents, including the complainant’s personnel file and the personnel files for any other miner at this operation who has been disciplined for tardiness in the last five years.

You are concerned it will take a lot of effort to gather all of these documents, for what clearly is a meritless claim. You say to the investigator, “There is nothing in the complaint about any safety activity. Joe was terminated for serious attendance issues. Why should we have to go to all this effort for what clearly is a fishing expedition?”

The investigator responds, “I am coming there on Thursday to see the documents. If you do not produce them by then, I will issue a citation for impeding the investigation.” He refuses to give you any information about what, if any, safety activity could support Joe’s discrimination claim. What do you do?

MSHA’s expanding authority

The tough news for operators is that the trend in the case law has been toward reading into the Mine Act a broader power for MSHA to request documents in investigations. Time will tell whether any of this changes with the current administration, but for now, MSHA investigators still tend to issue requests for a large volume of documents in discrimination investigations.

A case in point can be found in a recent decision of the United States Court of Appeals for the Sixth Circuit in Hopkins County Coal LLC v. Secretary of Labor (MSHA), No. 16-3848 (6th Cir. 2017). There, the company argued, among other things, that MSHA must inform the operator of the basis for the miner’s discrimination claim before the company must produce documents, such as personnel files, to the investigator.

The court disagreed, holding that the miner’s complaint does not have to state a viable claim to support an investigation and the Mine Act allows MSHA to demand production of records beyond just those expressly required to be kept under the Mine Act – as long as MSHA’s request is reasonable. That last statement is the key for operators in responding to investigation document demands.

Is MSHA’s document request reasonable?

For a document request to be reasonable, it has to be reasonable in scope. Are the documents requested reasonably related to what is being investigated? This takes into consideration the types of documents requested and the timeframe of the documents requested (two years of records versus five years of records, for example).

In evaluating reasonableness, courts often end up weighing how important the records might be to the investigation versus how time consuming or costly it would be to locate and produce the records. It is a balancing test of need versus burdensomeness.

Let’s come back now to the plant manager’s dilemma from the beginning of this article. Refusing to produce any documents outright will surely lead to issuance of an impedance citation and a failure to abate order, with potentially costly penalties.

In some cases it is possible to arrive at a resolution early in the process with the investigator. Our plant manager might better be able to resolve his concern by trying to limit the documents to a more manageable scope. He could try explaining to the investigator why it would be difficult to search through five years of personnel files to find other miners disciplined for attendance versus some more recent period.

That may be more reasonable, especially if there are a couple of other attendance-related terminations in the last year. Every investigation is different. If issues persist, other avenues to a resolution may need to be pursued.

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

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