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New MSHA penalties
MSHA is amending civil penalty procedures. The agency says this is to promote consistency, objectivity and efficiency, and facilitate the resolution of enforcement issues. Really, though, MSHA is displeased many cases are initiated by operators who disagree with inspector findings, which convert to points on which penalties are based. Currently, a maximum penalty of $70,000 is reached at 144 points out of a possible 208 points. MSHA plans to alter today’s scale and reduce points on which penalties are calculated. A maximum penalty of $70,000 would be reached at 73 points out of a possible 100. Important inspector findings relate to negligence and gravity. If we analyze “negligence,” here’s what regulations currently provide: ■ No negligence (Operator could not have known of violation): 0 points ■ Low negligence (Operator knew or should have known, but there are considerable mitigating circumstances): 10 points ■ Moderate negligence (Operator knew or should have known, but there are mitigating circumstances): 20 points ■ High negligence (Operator knew or should have known, and there are… Keep Reading
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… Keep Reading
MSHA can take control after mine accidents
Companies subject to OSHA are inspected after accidents, but employers are under no legal obligation to shut down all or part of their operations. In addition, companies are not required to correct conditions unless a citation is issued. And even then, if companies file a legal contest, there will be no legal requirement to abate conditions until the case is resolved. When MSHA responds to an accident, the situation is drastically different. The Federal Mine Safety and Health Act empowers the secretary of labor (MSHA) to issue any orders deemed necessary to protect any person. This power is immediate and can be exercised even if the cause of the accident is not yet known. MSHA can order removal of miners, cessation of operations and immediate changes in conditions to which workers may be exposed. Such orders may remain in effect for days, months and occasionally years. A Senate report from the passage of the Mine Safety Act explains why Congress gave such plenary power to MSHA. The unpredictability of accidents… Keep Reading
Why 2014 is the year of the workers’ voice
MSHA has recently expressed concern about fatalities in the aggregates industry and about employees taking risks by not focusing on potential consequences. The agency has emphasized that fundamental procedures, such as locking out and blocking equipment, are indispensable to preventing fatal releases of energy. It has further stressed the importance of operator reinforcement of safe procedures with regular training and monitoring of how miners are doing their work. There also appears to be tacit recognition that sometimes employees are not the best judge of their own competence on new assignments. MSHA is encouraging operators to provide and verify task training anytime there is a question. With that said, MSHA is also urging miners to insist on safe workplaces, and is emphasizing what miners can do to identify, correct and report unsafe conditions or actions. MSHA believes uninhibited communications between employees and companies can promote beneficial safety adjustments. MSHA stresses that miners who exercise safety rights, lodge complaints, talk to inspectors, or refuse work they consider unsafe are legally protected from… Keep Reading
Accident and injury reports
MSHA is under pressure to audit mine operator reports of accidents, injuries and illnesses. The inspector general of the U.S. Department of Labor issued a report in March that notes while MSHA has taken steps to detect and deter underreporting, more action is needed. The upshot of the report is this: “MSHA is expected to do everything it can to find and prosecute underreporting to ensure the agency has accurate statistics for safety evaluation and enforcement purposes.” Accident reporting Operators must remember that if an event falls within MSHA’s official definition of “accident,” the operator must report the accident within 15 minutes of discovery. The report must be made by telephone to MSHA at 800-746-1553. No other reporting to MSHA by any other means, or to any other location, will satisfy the immediate reporting requirement. Failure to report within 15 minutes may cause a $5,000 fine that cannot be reduced even if contested. The maximum fine in this case is $60,000. There are 12 categories of events in which MSHA… Keep Reading
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… Keep Reading
Personal safety
With a little free time over the holidays, someone I highly regard was doing work at home. The plan was to reposition a DVD-VCR player that did not fit the shelf it was on after the cable company put in a new box. To drop the DVD-VCR to the next shelf, a hole was needed in a 1 1/2-in.-thick hardwood shelf to pass wires through. There was concern about confusion reconnecting wires so everything was left connected. It seemed simple to drill while keeping an eye on the wires to not contact them. However, the first hole at 1 in. was not large enough to accommodate a plug that needed to pass through. A 2-in. diameter saw bit was at hand, but it was a little short for a 1 1/2-in.-thick shelf. It was believed that with enough pressure, the cut could be made. With force and persistence, the hole was completed – suddenly with an explosion of electrical wires. The wires were forgotten with the exertion of pressing the… Keep Reading
Violent complainant
An employee complained about a defective seat in his haul truck. His supervisor told him his complaint was “petty.” The employee threw a pen at the supervisor and was immediately discharged. The employee filed a wrongful discharge case with the Federal Mine Safety and Health Review Commission alleging discriminatory discharge due to a safety complaint. An aggregates producer may go forever without receiving safety complaints from employees. Genuine attention to employee well-being by a mine operator usually keeps employees from aggressively confronting management. Still, no company is immune because an employee may pursue a case for any alleged retaliatory action by his employer. Some complaints are genuine. Some are not – including disagreements unrelated to safety. The case of the employee who threw a pen after his safety complaint was disparaged is a mixed bag. The case In David Stache v. Alvin J. Coleman Son Inc., the supervisor testified that the pen throwing occurred while the supervisor was suspending Stache for not reporting an emergency steering defect on his haul… Keep Reading
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… Keep Reading
