January 2002
Regulations
Rock Law--Guarding Against Bogus Discrimination Claims
Occupational
Health Programs
A Prescription for Maintaining a Healthy Business
Guarding Against Bogus Discrimination Claims
By Willa B. Perlmutter
You
know the guy. You’ve got him (if you’re lucky, only one like
him) in your operation, and you’ve known guys like him every place
you’ve worked. He’s a pretty good miner, but he’s not as
good as he thinks he is. He might be a little harder on equipment than
most. Maybe he cuts corners at the expense of his own safety and the safety
of his co-workers. If you want him to do the job one way, he usually thinks
he’s got a better idea, and he can’t understand why you insist
on doing it your way. It might be the guy who gets into fights or the
guy who routinely smarts off to the shift supervisor. You might even like
the guy, but he’s an accident waiting to happen. You would love it
if he just went to work elsewhere, but he never seems to want to leave.
Then one day, it happens. He does something that is so far over the line that you just have to let him go. You tell him he’s fired and then you breathe a sigh of relief as he cleans out his locker and drives off the property. You figure your problem is solved.
But it’s not. Because the next thing you know, there’s an MSHA investigator calling to talk with you about this guy. It seems that after thinking about it for awhile, your former problem employee decided to file a discrimination complaint against your mine with MSHA. He’s claiming that you fired him not for any legitimate reasons, but because he made safety complaints. Incredibly, this guy (now known as the “complainant,” which is a pretty fancy name for someone who until recently you called “that pain in the…” well, you know) told MSHA that he was a model employee, but that you fired him just because he was worried about safety conditions in the mine. Can this really be happening? What do you to do protect yourself and your organization? What can you do to try to prevent something like this from happening again?
Under Section 105(c) of the Mine Act, a mine operator cannot take any adverse action against a miner because the miner exercised his rights under the Act. As a practical matter, this usually means that a mine cannot fire an employee or otherwise discipline him for making safety complaints to mine management, or to federal or state authorities. If a miner makes a complaint to MSHA that the mine discriminated against him, MSHA has 90 days to investigate his complaint. If the agency decides that the discrimination occurred, it will bring an action on the miner’s behalf against the mine, before the Federal Mine Safety and Health Review Commission. (MSHA can also order your mine to reinstate the miner while the case is pending, but that’s a subject for another article.) If MSHA decides that no discrimination has taken place, they will notify the mine and the miner, and the miner then has 30 days to file a complaint on his own with the commission.
Once the case is before the commission, a miner who claims he was discriminated against has to show that he engaged in protected activity. That is, he needs to demonstrate to the commission that he made safety complaints (either to mine management or to state or federal authorities) or that he refused to carry out an assigned task because he was worried about safety. If he can show one of those things (if he has made out a “prima facie case,” as the commission would say), the mine operator can respond by showing either that the complainant never made safety complaints or engaged in a work refusal, or that he was fired for reasons that had nothing to with his complaints or work refusals. Even if the mine cannot prove either of those things, it can still win the case if it shows the commission that the mine was not motivated by the Complainant’s complaints or work refusals, and that the he would have been fired even if he hadn’t done those things. The good news is that the commission normally won’t second-guess your personnel decisions. If the mine can show that the miner wasn’t fired for making safety complaints, or that it had a legitimate business purpose for firing him, the commission generally will not substitute its judgment for yours, even if it might otherwise think that your actions were too harsh under the circumstances.
Although you can use almost any information at your disposal to defend against discrimination allegations, four factors in particular have been found to support a mine’s claims that it would have fired this guy even if he did make safety complaints. First, you can show that the mine regularly disciplines other miners in a manner that is consistent with the way you disciplined the complainant in this instance. In other words, it hurts the mine’s case if you fired this guy for something that you usually only give miners time off for. The second factor makes the first a little easier to swallow: if you show that the complainant’s work record has been unsatisfactory in the past, you have more leeway in how you discipline him now. Third, it helps if you can show that the complainant has been warned for his unacceptable conduct in the past. Finally, of course, your case is much stronger if you can show the commission that the mine has personnel rules that forbid the kind of things that this guy was fired for doing. Being able to show some or all of these factors to the commission will greatly reduce your risk of losing the discrimination case.
These factors are also useful as you plan your personnel policies on a going-forward basis. You probably won’t be able to prevent discrimination complaints from cropping up every now and then, but you certainly can take steps in advance to give you the ammunition to fight them when they do come up. Putting procedures in place now that will head off discrimination complaints in the future is good business and good policy; one that may ultimately save time and litigation costs for your mine.
It makes sense to have a written disciplinary policy that is as specific as possible. The policy should also include some type of discretionary provision to give you flexibility to discipline miners for things you didn’t or couldn’t anticipate. You should stick to that policy as consistently as you can. Of course you’ll occasionally have reasons to exercise your discretion to deviate from your established disciplinary program, but the more uniformly you administer discipline at the mine, the less trouble you’ll get into in the future with miners who may try to claim that you treated some employees differently.
It is also a good idea to document each and every employee infraction, even if that infraction might seem minor at the time. Nothing elaborate—a simple note in the miner’s personnel file will do, but if a complaint comes down the pike, you will be able to show that the complainant had a history of infractions and that will make it easier to prove that he wasn’t fired simply because he made a safety complaint. Requiring your shift supervisor to keep these kinds of records for every miner under their supervision will also protect them from a possible claim that they were picking on one particular employee.
These suggestions may have a primary effect of encouraging your people to be safer and more conscientious miners. Equally important for present purposes, with these guidelines in regular and open practice at the mine, you may discourage potential discrimination complainants from bringing their cases in the first place. At the very least, you will certainly be in a better position to defend against discrimination complaints if and when they arise.
The guy we talked about at the beginning, and miners like him, will always be part of your work life. How you plan for these situations in advance, and how you deal with discrimination complaints as they come up, can mean the difference between a minor problem and what could be a time-consuming, expensive process.
Willa B. Perlmutter (wperlmutter@pattonboggs.com) is an associate in the Washington D.C. office of Patton Boggs LLP. The firm’s website is located at www.pattonboggs.com
Federal Mine Safety and Health Review Commission
ALJ REJECTS UNWARRANTABLE FAILURE CHARGES AGAINST COMPANY; STRESSES LACK OF PRIOR MSHA ENFORCEMENT
In a case against Northwest Aggregates, ALJ Michael E. Zielinski found that the Washington sand and gravel operator committed two S&S violations of ground control standards in a case in which a front-end loader operator was pinned in his cab by a slide of material. However, the ALJ rejected MSHA’s “unwarrantable failure” charges in connection with both citations, stressing the lack of prior MSHA enforcement action.
Zielinski reduced MSHA’s proposed civil penalties totaling $10,000 to a total $3,250 penalty. He also dismissed the agency’s Sec. 110(c) charges against the operator’s superintendent, Richard Inwards.
The accident occurred in February 1999 at Northwest’s DuPont Pit, a sand and gravel operation near Tacoma, Wash., when the operator of a Cat 992 front-end loader was scooping up loose material that had sloughed down to the base of the pit wall, which was about 100 ft. high. The loader operators were supposed to “fan out” and mine as wide an area as possible, allowing time for the material to slough naturally. If material did not slough readily or if overhangs appeared on the pit wall, the loader operators had radios to call for the bulldozer operator to push material off the top of the pit wall.
According to the ALJ’s decision, the loader operator injured in the accident did not “fan out,” but was mining in a narrow area. A major slough occurred that engulfed the loader, pushed the windshield against the operator’s chest, and buried him chest high in material. The miner could not breathe, but the other loader operator reached him quickly and was able to pull the windshield out of the material, relieving the pressure on his chest.
Zielinski noted that the same loader operator had been engulfed by sloughing material in the summer of 1998, when he had mined a fairly narrow area and created an unsafe pocket. Management officials and miners characterized the practice of mining in too narrow an area as digging into a “death trap,” the ALJ said.
Northwest Cited For Two Violations
After its investigation, MSHA cited Northwest for violations of §56.3130, which requires the use of mining methods “that will maintain wall, bank and slope stability,” and §56.3401, which requires the examination of ground conditions. Inwards, Northwest’s superintendent, was charged with the same violations under Sec. 110(c) of the Mine Act.
Zielinski agreed with the MSHA that Northwest committed an S&S violation of §56.3130, finding it was “clear that unsafe mining methods were being used.” The ALJ found that the unsafe mining methods were attributable to the loader operator’s disregard of Northwest’s established and safe, mining method. He rejected the inspector’s charge that a bulldozer had not been available to push material down to the loaders for several weeks. Zielinski credited testimony “that the dozer was active in the area and had pushed material down the day before.”
The loader operator “mined into a pocket and created unstable conditions that resulted in an extensive collapse of material around his loader that could easily have killed him,” the ALJ found. While Northwest is strictly liable for the miner’s actions, the violation was not “unwarrantable,” Zielinski held.
He noted there were past incidents in which loaders had been partially engulfed by material, but found that these accidents were caused by loader operators who had deviated from the established mining method and created an unsafe pocket. While the company did not formally discipline the miners involved, they were “reprimanded.”
Zielinski added it was “significant” that Northwest has used the same mining method “for decades” and has not been cited by MSHA for unsafe mining methods in any prior inspection. He reduced MSHA’s proposed $4,500 penalty to $750.
No Examinations of Highwall
The ALJ held that Northwest committed an S&S violation of §56.3401 because there were no formal examinations for loose ground conditions at the pit. The company argued that the loader operators were supposed to survey the highwall for unsafe conditions. But Zielinski found that this defense was “clearly an after-the-fact justification, and an inadequate one.” He added, “It is apparent that Northwest had made essentially no effort to comply with the regulation.”
Management officials had admitted to the MSHA inspector that the examinations were not being done and that no one had been designated to do them, including the loader operators, the ALJ noted. Zielinski also said it is “questionable” whether the loader operators had sufficient training or experience to conduct a proper examination of ground conditions.
However, the ALJ again rejected MSHA’s “unwarrantable failure” charge. “The violation was longstanding, but, it had not been the subject of prior enforcement action and was not, by itself, a highly dangerous condition,” he found. The observations of the loader operators and the foreman “partially” addressed the goal of inspecting for dangerous conditions, the ALJ added. “The absence of enforcement action over a period of several years is a significant mitigating factor,” Zielinski concluded. He reduced MSHA’s proposed penalty from $5,500 to $2,500.
HANSON, MSHA SETTLE ACCIDENT CASE
Hanson Aggregates and MSHA have settled citations related to an accident where two employees were injured.
ALJ Jerold Feldman approved the settlement reducing MSHA’s proposed penalties for four violations of Part 56 standards from $19,500 to $810.
The case arose in February 2000 at Hanson Aggregates West Inc.’s Honest Ridge Plant, a limestone operation in Limestone County, Texas. After its investigation of a non-fatal accident in which two workers were thrown into the water when a pump pontoon tipped over, MSHA cited the operator for four violations of equipment, safe access, life jacket and workplace examination rules.
In the settlement, MSHA agreed to withdraw its “unwarrantable failure” charges in connection with three of the violations and to delete its S&S designation for the workplace examination violation.
The settlement motion stated that the foreman was not aware that workers rode in the bucket of a front-end loader to gain access to the floating pontoon and that the company has a “clearly defined work rule and safety program that prohibits miners from riding in or being lifted in loader buckets.” Also, a flat-bottom boat was accessible for safe access to the floating pontoon, and Hanson provided accessible life preservers to its miners, the motion added.
MSHA modified the Sec. 104(d)(1) citation and orders issued for violations of §56.14211(b), §56.11001 and §56.15020 to Sec. 104(a) citations, assessing “ordinary negligence.”
Ellen Smith is the owner of Legal Publication Services, Pittsford, N.Y., which publishes Mine Safety and Health News. Melanie Aclander is legal editor for Mine Safety and Health News.
A Prescription for Maintaining a Healthy Business
There are numerous incentives for aggregate producers to develop occupational health programs within their companies. The industry operates in an environment that can pose long-term health hazards for its employees. It is governed by rules concerning dust and noise exposure. And, a preventive health program can lower worker’s compensation claims.
If these reasons are not motivation enough, here’s one more: the information you gather through a long-term occupational health program could be your ticket to remaining in business.
With agencies such as the International Agency for Research on Cancer (IARC), the National Institute for Occupational Safety and Health (NIOSH) and the National Toxicology Program (NTP) designating crystalline silica as a known human lung carcinogen, aggregate producers need scientific data that demonstrates that their ability to control any real or perceived health hazards.
“The silica and lung cancer relationship, whether you believe one exists or not, is potentially the most explosive health issue facing the industry,” said Kelly Bailey, C.I.H., manager of occupational health for Vulcan Materials Co. “The influential groups listed above share the view that our industry mines a human lung carcinogen and distributes it to the public.”
If that doesn’t scare you, it should.
“Regulatory agencies, including OSHA, MSHA and EPA, are responding by proposing more stringent health regulations. These regulatory changes will result in large cost increases, including compliance costs, legal costs and permitting costs,” said Bailey. “Having an effective occupational health program that addresses crystalline silica exposures to our industry’s workers needs to be a priority now.”
Initiating an occupational health program requires a basic understanding of what is involved. According to Bailey, once management commitment is obtained, there two essential building blocks to an occupational health program: an industrial hygiene sampling program and a medical screening or testing program directed at potential job-related health hazards. While other elements such as exposure control, employee training, hazard awareness training, data analysis and program evaluation can all add to the strength of such a program, the first two elements are the underlying basis on which everything else is built.
“They are the left and right hands of the whole,” said Bailey. “If only one exists, then you only have half the story and half the facts.”
Industrial hygiene sampling
The goal of an industrial hygiene program is to prevent job-related illness in the workplace. “Chronic health hazards are one of the hardest things to get people to respect,” said Bailey. “It takes an extra effort to get people to respect it.”
According to Bailey, industrial hygiene is based upon four basic principles: anticipation, recognition, evaluation and control of workplace health hazards.
The principles are sequential in nature because the effectiveness of each step depends upon the successful completion of the previous step, said Bailey. “If one does not anticipate a potential problem, then it may go unrecognized when it exists in the workplace. If a hazard goes unrecognized, it will not be evaluated or controlled until after it has caused harm. In the workplace, where low level chronic exposures may be present which do not immediately cause adverse symptoms, an unrecognized, unmeasured and uncontrolled health hazard can permanently affect many people before protective measures are taken,” he noted. “Once a potential health hazard is recognized, the process of evaluating the degree of exposure becomes paramount. This necessitates that sampling be performed to quantify the levels of exposure.”
Prior to sampling, Bailey said that several tasks need to be accomplished:
- Sampling instruments must be obtained;
- Samplers must be properly trained in their calibration, use and type of work observations to record;
- Certified analytical laboratories must be chosen; and
- A system to manage incoming exposure information must be established.
Bailey describes the monitoring phase of an occupational health program as a three-stage process that begins with addressing the worst exposures first (high risk), then evolves into an assessment that ensures that installed controls solve the exposure problem and ends by implementing an ongoing monitoring program which establishes confidence that exposures are under control over the working lifetime of the miners. This is accomplished by using the qualitative risk assessment to target mines, jobs and tasks within a mine that have the highest potential risk. These targets are where a quantitative assessment of exposures begins.
“A targeted sampling strategy is completely biased toward finding the highest exposures, which will represent the highest potential health hazard and the highest risk for an adverse health outcome,” said Bailey. “Once the highest exposures have been identified, the targeted sampling strategy is continued to assure installed controls are effective. A system of tracking all exposures and exposure problems from origination to resolution needs to be established to ensure that all identified problems have been addressed.
“It is critically important that those in supervision responsible for correcting the overexposure conditions be clearly communicated with in writing outlining their responsibilities,” he added. “This is sometimes referred to as an ‘exposure control action plan.’ It basically assigns accountability. Without it, identified problems may not get addressed.”
Once high-risk exposure areas are identified and engineering and/or administrative controls are implemented, the job or task should be sampled two or three more times to confirm that the exposure is under control, said Bailey. Producers should systematically sample each group of potentially high-risk jobs until all exposures are known and reduced to the appropriate levels.
The third stage in the industrial hygiene sampling program is to implement random sampling. According to Bailey, this allows use of statistical tools to measure exposure variability, to determine exposure distributions over time and to categorize high, medium and low exposure groups of miners.
“These types of data are very valuable for epidemiological examinations of miners with varying levels of risk,” said Bailey. “If a job class or mine site in a random sampling program is found to be over the lower control level, targeted sampling will need to re-established until controls are again shown to be effective.”
The database of exposure information becomes increasingly important as the volume of sampling increases, he said. It should be retrievable by individual, facility, mobile equipment identifiers, job title, sample dates, substance monitored, levels of exposure, etc.
Medical Monitoring
While an industrial hygiene sampling program is certainly an important component of an occupational health program, medical monitoring also plays a vital role.
As Bailey points out, once a health concern is raised, every employee wants to know if he or she has been affected. Medical monitoring, in most cases, provides the employee with reassuring answers.
Medical monitoring in the aggregate industry should include annual hearing or audiometric testing and periodic respiratory screening tests such as a chest x-ray and pulmonary function testing, said Bailey. Comprehensive respiratory, smoking and hearing histories are also necessary.
“These medical tests should be performed using standardized procedures established by certifying organizations such as the American Thoracic Society, the National Institute for Occupational Safety and Health program for certifying “B” readers of chest x-rays using ILO guidelines, and the Council for Accreditation of Occupational Hearing Conservation,” said Bailey.
Aggregate producers have two options for medical monitoring: use of a clinic or a mobile medical testing van. Bailey said that a mobile system offers many advantages such as reducing time off the job, providing a single contact for all medical testing, providing a single repository for all records, ensuring a consistent level of testing quality for all mine sites and enabling the miner operator to accomplish his testing needs over a short time period. Mobile units can also offer significant savings, he said.
“Whichever route is chosen…the selection of provider should be carefully considered and their qualifications confirmed,” said Bailey. “In addition, other considerations need to be addressed, such as employee notification of results—both occupationally and non-occupationally related, confidentiality of medical information, follow-up diagnostic testing for potentially occupationally related abnormalities, record retention, regulatory agency reporting, communicating exposure information to examining physicians, data retrieval, etc. Each of these areas needs to be explored and the occupational health program needs to identify how each will be handled.”
Conclusions
In the past, producers may have avoided the implementation of an industrial hygiene program because of liability concerns or because they didn’t know where to begin. Neither of those reasons outweighs the benefits that must now be derived from such a prgoram.
“Many companies do not want to begin respiratory medical testing for fear of what they will uncover,” said Bailey. “This fear is not totally unjustified; however, it is only relevant with the initial testing survey. If miners have silicosis, you will find them in your respiratory medical screening.”
Once a probem is discovered, he noted, individual cases are dealt with through worker’s compensation—if a disability is determined.
“After the initial survey, as long as you have a chest x-ray taken in the pre-hire medical examination, you should only see cases with the earliest signs of silicosis in subsequent periodic surveys,” said Bailey. “First stage silicosis is typically not clinically significant as long as dusts are being controlled. In most cases, the employees do not even know they have silicosis.”
The one exception, he added, is with acquisitions where dust control measures may not be as effective and long-term employees will show the effects in their x-rays.
On the other hand, data gathered through an occupational health program may give you your best defense against future regulations and community relations concerns.
“You can’t get your neighbors to line up for an x-ray van, but you can take care of what’s inside the fence,” said Bailey. “If you can demonstrate that you’ve got your situation under control inside your fence, the chances of it being out of control outside your fence are very remote.”
That’s where your occupational health program and accompanying record keeping can pay for itself many times over.
“You have to come to the table with some information, otherwise you operate under (regulators’) assumptions. If you don’t have any data, you’re playing with their cards, and they may be all marked,” said Bailey. “That’s part of the basis for having an occupational health program—it’s called good business. If you want to be in business for a short time, ignore it. If you want to be in business for a long time, pay attention and get ahead of it. You don’t know until you know.”