Guest Blog: MSHA’s Right to Private Information Expanded
By Adele L. Abrams, Esq., CMSP
The Mine Safety & Health Administration’s (MSHA) broad warrantless rights to inspection mines and to demand information have been further expanded by a new decision of an Administrative Law Judge (ALJ), which builds upon a couple of previous rulings that were more limited in scope.
On September 4, 2013, ALJ Steele granted the Secretary’s Motion for Summary Judgment in Warrior Coal LLC, holding that – without limitation – MSHA can require a mine operator to provide the Secretary with the names, home addresses, telephone numbers, positions and shifts of all miners during the course of the agency’s investigation of personal management agent liability under Section 110(c) of the Mine Act.
A bit of background may be useful to understand the significance of this ruling. When Congress enacted the 1977 Mine Act, it created MSHA and gave the agency warrantless search authority over the mines it regulates.
Challenges were raised to the constitutionality of this provision, but it was upheld as appropriate given the “ultra hazardous” nature of mining (the Act came on the heels of the Sunshine Mine disaster which killed nearly 100 workers). MSHA’s subpoena power was limited to situations involving public hearings, but the case decisions upholding the warrantless search powers stressed that there was no reason to believe that the agency would abuse its powers.
The issue of access to miner’s personal information was raised before the Commission in BHP Copper Inc. in 1999, in the context of a fatality investigation and while the ALJ backed the operator’s right to refuse to provide this information to MSHA, the Commission upheld the right. Again, however, the ruling was narrowly tailored and justified because the information sought was limited to eye witnesses to the fatality and the exigent circumstances of a fatality which required prompt access to witnesses.
In April 2013, the courts further opened the door to confidential information when – in Big Ridge Inc. et al. v. FMSHRC – the US Court of Appeals for the Seventh Circuit held that MSHA was a public health agency that had the right to access medical information on miners, contained in the mine’s files and worker’s compensation records.
The ruling came over the objections of both a number of coal companies involved in the consolidated action and the objections of the miners, who had joined the litigation on the side of the company asserting their privacy interests in the requested information (which was demanded to verify injury/illness reports under Part 50.41 and under Section 103(h) of the Mine Act).
In the most recent Warrior Coal case, the Secretary was neither engaged in a Part 50 audit nor in a time-sensitive accident investigation, however. Instead, the agency argued that its request for information was within the scope of the investigative authority of the Mine Act and that, while individual miners may refuse to give the requested information to MSHA, mine operators have no such rights. Furthermore, the Secretary stated, MSHA was not bound by its policy manuals as they are not “officially promulgated” and the agency also has authority to issue a withdrawal order under Section 104(b) even if no areas of the mine or miners are affected.
The company countered that the personal miner information was not required to be kept under the Mine Act or MSHA regulations and that its employees’ privacy rights are guaranteed by the Act and by MSHA’s own policy rules concerning special investigations. By demanding the information from the company, and not from the miners themselves, MSHA was able to circumvent the miners’ right to decline to provide that information.
In upholding MSHA’s right to the confidential personal information of miners, the ALJ first examined Section 103(a) of the Act, which authorizes MSHA inspections and investigations for the purpose of determining whether there is compliance with the mandatory safety or health standards it promulgates.
He then noted that Section 103(h) specifies that “[i]n addition to such records as are specifically required by this Act, every operator of a coal or other mine shall establish and maintain such records … reports … [and] information, as the Secretary … may reasonably require from time to time to enable him to perform his functions under this Act.”
ALJ Steele also noted that Section 104(b) permits MSHA to require all persons to be withdrawn from an area until the agency requires that a violation has been abated.
In the Warrior Coal case, MSHA had issued two Section 104(d)(1) alleged violations and commenced the special investigation under Section 110(c) to determine which agents of management may have had knowledge of how long the violative conditions existed. The agency stressed the importance of interviewing all employees on all three production shifts to determine who had such knowledge. The special investigator told the judge that it was important to have the home addresses and phone numbers for all employees so they could “speak freely with investigators outside the mine setting.”
The MSHA district manager requested the information under authority of Section 103(a). The operator responded by requesting details of the purpose of the investigation and the need for the requested information, noting that MSHA’s Special Investigations Procedures Handbook said that such information could be provided by miners “on a voluntary basis.” MSHA responded that Warrior must cooperate of face legal action, relying on the BHP Copper decision, and also threatening a federal injunction under Section 108(a)(1)(E) of the Mine Act.
When Warrior provided some information to MSHA, but asked for a “narrower, more focused” demand, MSHA responded by issuing a citation under Section 103(a) with a $555 penalty, but with negligence classified as “reckless disregard.” An hour later, a Section 104(b) withdrawal order was issued for failure to abate (by providing the confidential miners’ information). A Section 104(b) order is considered an elevated action for purposes of MSHA’s Pattern of Violations.
ALJ Steele wrote that Section 103(h) allows MSHA to make reasonable requests for information from mine operators, even when this information is not specifically required to be obtained by the Act or MSHA regulations. The provision is “expansive, not restrictive” in scope. The ALJ further held that, although employees have privacy rights under the Act, operators cannot refuse to provide information to MSHA when the agency has a “legitimate government purposes for obtaining the information.”
In passing Section 110(c), Congress intended to hold individual officers liable for violations and that the current information request was reasonable and that while Warrior was not required to keep employee contact list information under the Act, it was not realistic to contend that the company did not keep up-to-date contact information for its workers.
While MSHA could have asked for information specific to each individual working on each shift involved in the alleged violations, the Secretary took the alternate approach of asking for information on all 400 miners, putting the burden of such interviews on the agency. The ALJ noted that “[a]ny miners unwilling or uncomfortable discussing mine conditions with MSHA could simply refuse, as is their right.” Although the ALJ recognized that, in BHP Copper, a fatality had just occurred that was distinct from the Warrior investigation type, the decision in Big Ridge accurately related to the current case.
The ALJ also agreed that MSHA is not bound by the procedures in its policy manual on investigations because policy documents do not prescribe rules of law binding on the Commission, he did caution that some have been given legal significance where a policy’s soundness commends deference. Finally, the judge upheld the Section 104(b) order, even though no areas of the mine or persons were threatened by the Section 103(a) violation.
Of course, what was really at issue was MSHA’s ability to launch a personal prosecution investigation without the company’s knowledge that an investigation was even underway. By obtaining all employee information (hourly miners as well as foreman and other agents of management), even supervisory level miners could be interviewed at home, without being advised of their rights (or being represented at the interview) by counsel.
In such circumstances, MSHA traditionally will not tell the employee that he or she is a possible target of the investigation, nor that they can be personally fined up to $70,000 for each Section 110(c) action related to a company citation/order, nor that they can even be criminally prosecuted depending on the investigative findings.
MSHA does not have to give miners or supervisors “Miranda Warning” because if the employee consents to be interviewed, it is deemed voluntary and is not a custodial interrogation. Simply put, MSHA’s goal is to interview miners off-site before they can “lawyer up.” Unless reversed by a higher court, the Warrior Coal decision makes MSHA’s job in obtaining incriminating statements from hourly and salaried miners that much easier.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at firstname.lastname@example.org or visit safety-law.com for more information.