By Ellen Smith
A divided Review Commission ruled that MSHA can demand copies of certain personnel records not required to be kept under the Mine Act if the records assist in determining compliance with the anti-discrimination provisions of the Act.
Chairman Mary Lu Jordan with Commissioners Robert Cohen and Patrick Nakamura said Sect. 103(h) of the Act “broadly authorizes the Secretary to request access to records not required to be kept by operators as long as the records are reasonably required to enable [the Secretary] to perform his function under the Mine Act.”
In their dissenting opinion, Commissioners Michael Young and William Althen called the Secretary’s demand for personnel records a “fishing expedition in hopes [the Secretary] can manufacture a claim for a miner” in his discrimination case.
The case expands upon a recent May 2016 decision where the majority of commissioners ruled that MSHA has the right to request mine employees’ home phone numbers and addresses for purposes of a 110(c) investigation (see: 23 MSHN D-1292). It is also in-line with a previous Commission decision, upheld by the 7th Circuit Court of Appeals, that MSHA has a right to request and review medical, workers’ comp and personnel records not required under the Act to assure that mine operators are complying with Part 50 requirements by reporting all accidents and health-related issues (see: 20 MSHN D-1492).
The miner claimed he was “directed to do more than my regular job duties on a daily basis, which I would do on weekends for pay. I also feel that the comments about the union played a part in my discharge.” The miner’s initial complaint did not explicitly set forth any protected activity. However, in an interview with the MSHA investigator, the miner claimed that “as a belt examiner he had been required to perform work beyond his regular job duties, which made his job so burdensome that he did not have time to correct the safety hazards he found.” The miner also claimed he was told by the company that he did not have to record a hazard if it was corrected.
In investigating the case, and after the company initially refused to cooperate because the miner did not identify any basis for a claim, MSHA asked for the miner’s personnel file, along with files of any other miners who were disciplined, reprimanded or terminated over the previous five year period for engaging in the same conduct as the fired miner.
MSHA specifically sought the following information:
- The miner’s personnel file.
- Any documents showing disciplinary action that was taken against the miner by the company.
- Documents showing any hazards or potentially hazardous conditions, including but not limited to pre-shift, on-shift and conveyor belt examination books for the period of July 1, 2008 – Jan. 31, 2009.
- Any employee handbook or employee manual that was used by the company from Jan. 1, 2004 – Jan. 20, 2009.
- The personnel files of all employees at the mine who were disciplined, reprimanded, or terminated during the period of Jan. 1, 2004 – Jan. 20, 2009, for engaging in the conduct which led to the termination of the miner in this case.
- All documents relied upon by the company in its decision to terminate the miner.
Again, the company refused, based on the fact that it was entitled to know the protected activity alleged by the fired miner. The company was given several chances to turn over the information, but refused “on the grounds that the request was vague and that privacy concerns prevented the release of the files.”
Because the company refused MSHA’s request, the MSHA investigator then issued a 104(a) citation alleging that the company violated sections 103(a) and 103(h) of the Mine Act by failing to produce requested records. The company was given 45 minutes to turn over the records, and it again refused. MSHA then issued a 104(b) withdrawal order for failing to produce the records for a 105(c) investigation. The agency gave the operator another five minutes to produce the records, and then issued another 104(a) citation for continuing to work in the face of a withdrawal order, and set an abatement time of 10 minutes. When the company continued to refuse, it then became subject to provisions under 110(b)(1) of the Act, and penalties of $5,000/day.
A day later the company produced the miner’s personnel file, and produced redacted files of four other employees.
The citations were challenged, with the company arguing that 104(b) orders cannot be issued for violations where there are no areas of the mine affected, and that the miner failed to state a specific protected activity in his complaint.
Mine Act Authorizes Investigation Into Every Complaint
On the issue of the miner failing to indicate a protected activity in his complaint, the majority of commissioners said that Section 105(c)(2) of the Mine Act authorizes MSHA to investigate a complaint of any miner who believes that he has been discriminated against.
“A miner’s mere belief that he or she has been discriminated against and the filing of the MSHA complaint form expressing that belief are sufficient grounds to trigger an investigation of discrimination by the Secretary,” the commissioners wrote.
While the Mine Act is “silent on whether the miner’s charging complaint must specifically identify a protected activity,” the legislative history of the Mine Act is “clear that the listing of protected rights … is intended to be illustrative and not exclusive that the scope of the protected activities be broadly interpreted by the Secretary.”
The three commissioners said the Mine Act requires the Secretary to investigate any complaint that the Secretary deems “appropriate,” and “the statutory language and the legislative history together make clear that an investigation deemed appropriate by the Secretary should be afforded to every miner who believes he has been discriminated against, and has filed a complaint with the Secretary alleging the discrimination.”
Jordan, Cohen and Nakamura also stressed there are cases where a miner does not actually engage in a protected activity, but an operator discriminates against the miner because of the operator’s belief that the miner engaged in the protected activity. There are also cases where miners don’t know their rights under the Mine Act, and don’t know what to tell the MSHA investigator, even when discrimination has taken place.
“Thus, in cases where a miner is uninformed or unclear about what constitutes a protected activity, but believes that he or she has been wronged by an employer, the Secretary’s investigation into this ‘belief’ serves as a necessary safety mechanism that ensures the miner has the opportunity to fully develop his possible claim of discrimination.”
The “threshold” for initiating an investigation “requires only the filing of a complaint with MSHA. It does not require that the Secretary establish protected activity before it may investigate, because whether or not a protected activity exists is determined during the preliminary investigation, not before,” the majority said.
The company said MSHA should have provided a notice of the alleged protected activity, which must be done in the case of a civil lawsuit. However, under the Mine Act, the Secretary is only required to forward a copy of the complaint, as filed by the miner, to the operator in a pre-proceeding investigation such as this one.
MSHA’s Right to Non-Mandated Records
The mining company also argued the records sought by the Secretary were not required records under the Mine Act.
However, the Commission noted that it, and the 7th Circuit Court of Appeals, have upheld MSHA’s right to request and review medical and personnel records not required under the Act to assure that mine operators are complying with Part 50 reporting requirements (see: 20 MSHN D-1492). This case is no different.
“The Secretary has broad authority to conduct inspections and investigations under Sect. 103(a)… and Sect. 103(h) does not restrict the Secretary’s access to records that are specifically required to be maintained by the Act and regulations.” The 7th Circuit held that MSHA may require a company to produce “non-required records when the additional information would enable MSHA to perform its functions under the Act.” In this case, “records that tend to establish or disprove an element of a prima facie case of discrimination generally are, in our view, reasonably required to enable the Secretary to perform his investigative function under Sect. 105(c) of the Act,” according to the majority opinion.
Like the Big Ridge case, the Commissioners said the request for the records was not intrusive, and would corroborate or undermine the miner’s allegations of disparate treatment. The request for the six records was also “specific and clear enough that it was not unreasonably burdensome for the company to produce the targeted records.”
Failure to Abate Order
The company also challenged MSHA’s right to issue a 104(b) order where there is no section of the mine affected or there are no miners to withdraw as in this case.
The commissioners said the Mine Act is silent on the issue, but “The Secretary’s authority to issue a Sect. 104(b) failure to abate order is not predicated on proving that an affected area exists, but on showing that the underlying violation was not properly abated and that the time should not be extended.”
“While an operator’s continued refusal to turn over records may not present an immediate safety risk, it is nonetheless hazardous in that it hinders the Secretary’s investigations, which are intended to ensure operator compliance with the Act’s safety measures,” the majority wrote. “Consequently, the rapid abatement of all violations, not only those that present immediate physical hazards, is essential for the protection of miners. Otherwise, absent our approval of the Secretary’s interpretation, MSHA would have no remedy or leverage to force timely compliance should an operator refuse to comply with a reasonable request for information in furtherance of an investigation.”
HOPKINS COUNTY COAL LLC., 6/24/2016, FMSHRC No. KENT 2009-820-R et al.; 23 MSHN D-1631