As we write this, the government shutdown is a week old.
Our assumption is that, as you are reading this in November, the government is back open. If not, we can all agree that something has gone terribly wrong.
With that said, the Mine Safety & Health Administration (MSHA) withstood the full force of the shutdown by protecting 879 of the 1,590 total agency workforce from furloughs. Retained personnel were those who were – according to the Department of Labor’s Shutdown Plan – deemed “necessary to perform activities necessarily implied” by the Mine Act or “necessary to protect life.”
Essentially, MSHA kept its on-the-ground enforcement personnel on the job so mandatory annual inspections – two at surface mines and four at underground mines – and accident investigations could continue.
Still, nonenforcement personnel like conference and litigation representatives (CLRs), training personnel and compliance assistance experts were furloughed. Significant on this list of “nonessential” personnel were CLRs. Their temporary elimination from the active roles forced the suspension of informal conferences.
We heard from a number of operators who were disappointed by the temporary loss of this informal option. We understand that disappointment. If we had had anything to say about it, we probably would have made a different choice.
Longtime readers of this column know that we consider the Part 100 informal conference process to be an essential component of the agency’s overall administration of its mine safety responsibilities.
Experience has demonstrated that a breakdown in the informal conference process creates a number of unwanted consequences. These include more time-consuming formal contests, case backlogs at the Federal Mine Safety & Health Review Commission and diminished communication between MSHA and mine operators.
None of this promotes the important cooperative dialogue between the agency and the mining industry that’s necessary to achieve effective safety and health compliance.
We certainly understand that some mine operators have mixed feelings about the benefits of MSHA’s informal conference process. Doubts about the process tend to arise from perceived disparate levels of commitment to the program among different district offices and frustration with the results of particular conferences.
While we certainly recognize this frustration and have experienced it on many occasions, we still think it provides an effective means of resolving the vast majority of enforcement disputes before resorting to formal contest proceedings that consume considerable time and resources.
Mine operators can take several steps to improve their informal conference experience. Chief among these is setting reasonable goals when approaching the conference.
If the goal is to have every citation vacated, or every S&S (significant and substantial) violation modified, there is a good chance disappointment will follow. However, if the objective is to positively impact your violation history, understand more clearly MSHA’s enforcement interpretation – even if you don’t agree with it – or simply build a rapport with the district office, the process can offer much more opportunity for satisfaction.
With the right goals, the other steps that enable you to have a productive informal conference are straightforward:
• Ask questions in the inspection closeout conference. This important first step helps you understand the inspector’s enforcement interpretations.
• Know the facts. Understand the conditions or work practices observed by the inspector.
• Obtain the inspector’s notes. If time allows, the notes can highlight critical issues.
• Have the right people in the informal conference. Maintain a levelheaded, business-like focus and avoid taking offense.
• Have a plan. Outline your arguments so you can clearly communicate your position.
Things will not go your way every time, but it’s an extra bite at the apple that offers the chance to improve your situation – even if resorting to a formal contest becomes necessary.
It is a matter of playing the long game. Engaging in informal conferences enables mine operators to consistently provide accurate facts, exhibit safety commitment and demonstrate good faith. Each effort builds on the next. It’s an opportunity that benefits both sides of the table.
In our minds, it clearly is an essential opportunity that should not be missed the next time the government shuts down.
Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.
