July 2003
First Impressions and Enforcement
Review this inspection checklist to see how regulators view your operation and how it may impact their actions.
By Henry Chajet
First impressions count! Are you ready for the government visitor, new inspector, or accident investigator? When they arrive, they quickly take stock: good guys or bad guys? First impressions provide the background for government approvals or restrictions or the severity of enforcement actions that may follow. Consider the following critical items to help judge the first impression you will make, and hopefully improve if needed.
Compliance history and preventive programs. Before arrival, a government agent reviews the site’s history. Knowing your history, and acting to improve, is essential in making a favorable first impression. The implementation of a program to prevent repeat violations, or a new training program, can be a critical discussion topic with an arriving investigator.
Notice and evidence preservation. Immediate notification of certain events and preservation of evidence is mandatory (e.g. 12 types of accidents, 30 CFR Part 50). Late or no notice causes terrible first impressions and significant enforcement risks. Following simple advice eliminates this risk; when in doubt, report and do not disturb evidence beyond that necessary to save lives or destruction of property. Otherwise, MSHA, other agencies, and plaintiff’s lawyers will allege that their investigation was hindered, risking significant sanctions and even an obstruction of justice charge.
Entry, exterior, and interior image. Does the site entrance and visible perimeter show commitment to safety and environmental protection? Is there a sign: “Safety Is Our Priority?” Is there a pond with flowers, grass, and birds or a “Nature Preserve/Bird Protection Area” sign?
Few industrial sites can incorporate a park, but every site can add something that shows commitment. Every site can avoid a “boneyard” for old equipment at the entry and dress up the perimeter. Every site can post entry rules, demonstrating concern for visitors, along with their safety record.
Post safety rules at the entry and safety precautions at the exit (“Remember to Fasten Your Seatbelt”). Speed limit and traffic signs should be placed at strategic locations. Display safety and environmental awards, post company policy, and hang community activity and sponsorship plaques. Every site can show commitment, pride, accomplishments, and knowledge.
Opening conference/discussion. The message should be one of welcome and cooperation, even when caution is needed. An inquiry as to plans and purpose should be combined with an offer of assistance and comfort (e.g. coffee, facilities, and management accompaniment). While management may have to “buy time,” it should be filled with productive assistance: an initial site observation, without a detailed incident discussion. The need to avoid incriminating admissions and obtain advice of counsel must be exercised with truthful, courteous postponements (Question: “How long have you known about this?” Response: “Sorry, but I can’t talk about that yet.”)
Records and documents. Another critical first impression comes in response to document requests. Mandatory records (e.g. training) should always be readily available for immediate production. In contrast, release approval may be needed for records not required by regulations. (“Sorry, company policy requires that I obtain approval to release confidential, non-required, business records.”) When in doubt regarding the mandatory status of a record (required or not?), a simple “show me” where it is required provides the basis to resolve the question, and still seek a short delay for counsel, if needed.
Conduct self-audits yearly to ensure mandatory record accuracy in the following areas:
- Training (including task training);
- Mobile equipment pre-use inspections; and
- Work area inspections.
Not only are these records mandated by MSHA, but they form the core of a successful program from the government’s perspective.
Of course, mandatory records must reflect actual training and inspection events, along with actions to abate found hazards. It doesn’t take long for an investigator to discover that records reflect inadequate programs and that poor first impression is one an operator might not recover from. Falsified records are the leading cause of criminal regulatory prosecutions.
Unabated hazards, noted on inspection reports, can constitute the basis for a “knowing” violation and severe enforcement. To prevent this result, good record-keeping practice requires that any record that identifies a problem, should be accompanied by a record that identifies the “fix” or protective measure taken.
Professional response. The professionalism of the company representative(s) forms another first impression for the government investigator. Communication of commitment to safety and environmental protection, knowledge of regulations and the inspection process, and proper reaction to observed violations are critical. The company representative(s) must be trained to participate effectively, and other site management should be trained to defer to the designated “single point of contact.” Observations of problems should be met with immediate efforts to abate or protect people and the environment, without incriminating admissions.
The company’s representative is the investigator for the company’s counsel, taking control of the inspection, keeping notes, collecting samples, photographing and measuring evidence, identifying witnesses, and preparing for anticipated litigation. As counsel’s investigator, his notes can be privileged and confidential, not discoverable by the government. When a government investigator realizes that a professional and trained representative is participating, he is less likely to take questionable enforcement actions.
Many first impressions form the basis of investigator opinions and help determine the severity of the enforcement actions. Don’t wait for an incident to prepare because it might be too late to make a difference; advance training is essential.
Henry Chajet is a partner in the Washington, D.C. office of Patton Boggs LLP.
Discrimination and Arbitration
Binding arbitration agreements in employment contracts may violate Section 105C of the Mine Act.
By Adele Abrams, Esq., CSMP
Companies are increasingly attempting to include “binding arbitration” agreements in employment contracts and other employee documents. The issue of whether such waiver of the right to bring suit interferes with the Mine Act’s anti-discrimination provisions under Section 105C was considered in MSHA and Muehlenbeck v. Concrete Aggregates LLC (ALJ Manning, May 30, 2003). Muehlenbeck, a supervisor, was terminated for leaving early after being pressured to sign the arbitration agreement under protest. The company had recently hired a third-party payroll company that included the language in employee forms without regard to miner’s rights under the Act. The mine supervisor, John Muehlenbeck, and several other miners initially refused to sign the forms and they were told that, without a signed form, there was no guarantee they would receive a paycheck. The language at issue stated, in relevant part:
I agree that any legal complaint or dispute involving [the company or the payroll company] under whatever law, regarding my employment, my application for employment, or any termination from employment, will be submitted exclusively to binding arbitration by a panel… This means that any complaint or dispute will not be heard by a court, a jury, or an administrative agency. I also agree that having an administrative agency proceed purportedly on my behalf would circumvent this agreement, therefore, I assign any relief or recovery an administrative agency obtains purportedly on my behalf from an arbitrating party to that party.
The supervisor brought MSHA’s pamphlet on miner’s rights to the owner’s attention and also raised the issue during a meeting with the payroll company. Ultimately, the miners were told they could sign the forms “under protest.” Muehlenbeck left before the end of his shift, and a mechanical problem subsequently occurred that placed a miner in jeopardy because there was no one other than Muehlenbeck and another miner (who also left and was terminated) who could do the needed repair. When Muehlenbeck returned to work, he was asked why he left early and he said he “got pissed off” and wasn’t going to “sign that piece of paper.” The owner immediately terminated him, although he had received no previous disciplinary actions during his time at the mine.
In her brief, the Secretary noted that because refusal to sign a document that conflicts with statutory miners’ rights under the Mine Act has never been addressed by the Commission, she regarded it as analogous to a “work refusal” in terms of the legal analysis. Judge Manning agreed, and also found that the miner and MSHA had established a prima facie case of discrimination (protected activity coupled with an adverse employment action close in time). He said that the miner did not need to prove that the employee acknowledgment form would actually interfere with his Mine Act rights — he just had to show a good faith, reasonable belief that his rights would be infringed. This burden was satisfied. The judge further found that the mine operator had not satisfied his obligation to address the “perceived danger” by adequately addressing Muehlenbeck’s concerns.
However, ALJ Manning also found that the preponderance of evidence showed that Concrete Aggregates terminated the supervisor because he left the quarry without permission or notice and that his actions could have endangered another miner. Moreover, the supervisor failed to provide a rational explanation for his actions other than being “pissed off.” Thus, although the mine operator had notice of the worker’s protected activity, there was a close coincidence in time between the protected activity and the adverse action, and the employer demonstrated some “animus” toward the worker because of the protected activity, the judge agreed that the refusal to agree to binding arbitration played a role in Muehlenbeck’s termination.
Analyzing this as a “mixed motive” case, the judge found that Muehlenbeck was terminated because he left the quarry in anger without explanation or permission and that the mine operator’s action was primarily motivated by his unprotected activity. The judge also considered MSHA’s argument that Muehlenbeck’s “impulsive behavior” was provoked by Concrete Aggregates in light of cases that hold an employer cannot provoke a worker to the point where he commits an indiscretion and then rely on this to support termination. Muehlenbeck was not entitled to “leeway” because reading a fax did not constitute the kind of provocation that would justify job abandonment, the judge concluded, in dismissing the discrimination complaint. ALJ Manning declined to rule on whether binding arbitration of the type presented here actually violates Section 105C of the Mine Act.
Secretary has authority to vacate citations
In a May 28, 2003, Order of Dismissal, ALJ Feldman affirmed that the Secretary of Labor has unreviewable discretion to withdraw a citation that charges a mine operator with violation of a mandatory safety standard. In Lafarge Building Chemical Corp. (ALJ May 2003), the miner’s representative had challenged the Secretary’s decision to vacate a citation alleging a violation of § 56.14105 (which requires machinery or equipment to be turned off/blocked against hazardous motion prior to repair or maintenance). The judge relied on the decision in RBK Construction, Inc. 15 FMSHRC 2099 (October 1993) in dismissing the proceeding, but he declined to address the issue of the miner’s representative’s standing.
Judge questions economic hardship pleas
A recent ruling, Big Buck Asphalt (ALJ Feldman, May 30, 2003), suggests that operators must document their assertions of “hard times” in order to pass muster. In this case, the judge initially rejected a proposed settlement that MSHA and the company submitted because the substantial reduction (from $48,262 to $12,065) was supported by an unaudited financial statement by the operator’s certified public accountant. Judge Feldman noted that “[U]naudited financial statements do not provide a basis for establishing payment of a civil penalty which will adversely affect a mine operator’s ability to continue in business.” He cited a similar holding in Spurlock Mining Co., Inc., 16 FMSHRC 697 (April 1994).
Although he denied the parties’ initial Motion to Approve Settlement, the judge was persuaded by the Secretary’s reiteration of support for the proposed settlement and the operator’s letter from CitiCapital Commercial Corp. identifying a corporate debt that was in default. Although ALJ Feldman said he was “skeptical,” he concluded that the proffered settlement was “not inconsistent” with the penalty criteria in Section 110(I) of the Act.
Special assessment forms not privileged
When faced with mine operators’ discovery requests, MSHA often attempts to withhold critical documents as “privileged” information. This was addressed by ALJ Manning in CDK Contracting Co. (ALJ, May 30, 2003), when the operator filed a Motion to Compel production of “Special Assessment Review Forms.” The Secretary had claimed that the special assessment forms were protected by the “deliberative process” privilege, and that the special investigation file was protected by that privilege as well as the informant’s privilege or the attorney-client privilege.
Judge Manning recognized that the deliberative process privilege covers “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” However, he held that once a citation or order is specially assessed, MSHA has adopted the proposal and it is no longer “pre-decisional.” Thus, the document lost its protected status. The ALJ added that the Secretary’s position with respect to these review forms is “inconsistent at best” because in some cases MSHA has attached the forms to its Petition for Assessment of Penalty absent any request by the operator.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.