Pit & Quarry, June 2014

The workers voice M SHA 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 retaliation MSHA wants employees to know they can appoint safety representatives and those representatives are entitled to accompany MSHA inspectors with no loss of pay Enforcement of miners rights MSHA is pursuing a Voice in the Workplace initiative to encourage miners to participate in the safety oversight and enforcement process Integral to this is MSHAs concentration on energetically protecting BY MICHAEL T HEENAN miners from discrimination related to safety activity including criticisms by miners or suggestions for improvement of company equipment or procedures This protection also extends to independent contractors company managers and supervisors and even applicants for employment Most companies are confident of their commitment and the emphasis they place on safety They feel they treat employees fairly and are convinced they would not discriminate LAST YEAR MSHA FILED MORE DISCRIMINATION COMPLAINTS THAN EVER BEFORE TEMPORARY REINSTATEMENT ACTIONS ARE ALSO WAY UP SINCE 2012 against anyone trying to be safe However most operators who get embroiled in miner discrimination cases never see them coming A typical case might involve a miner doing something that warrants discipline or discharge It could be something like violation of an MSHA regulation The company may feel pre discipline review procedures are adequate to ensure a legally sustainable discharge Days later however the miner might be complaining to MSHA about the discharge being unfair How much of a concern is this Investigation and prosecution In a discharge case MSHA will initiate and complete a preliminary investigation MSHA stresses that miners who exercise safety rights lodge complaints talk to inspectors or refuse work they consider unsafe are legally protected from retaliation within 15 days not to prove or disprove discrimination but simply to ascertain the miners allegations are potentially supportable and therefore not frivolous If the complaint is found not frivolous MSHA will require temporary reinstatement of the miner This job reinstatement will continue if MSHA remains committed to the case something MSHA decides after it does a full investigation which it has 90 days to complete Reinstatement can last for years and if economic reinstatement is negotiated in lieu of actual reinstatement then pay without work can go on for years If after full investigation MSHA finds what it considers unlawful discrimination a Labor Department attorney will prosecute on the miners behalf and will also seek a civil penalty on MSHAs behalf What does it take for MSHA to find discrimination 1 Something bad like discharge happened to the miner 2 the miner had verifiable safety activity 3 the bad thing is believed by MSHA to have been a reaction in whole or in part to the safety activity Often a connection will be presumed by proximity in time and the burden will shift to the operator to disprove a connection If MSHA declines to prosecute Continued on page 60 58 PIT QUARRY June 2014 www pitandquarry com