MSHA notes that it was not necessary to include mine managers above the level of “first line supervisor” in the survey, because they are “receivers” of mine safety and health concerns from workers and foremen and, thus, it is unnecessary to ask them about their willingness to voice safety and health concerns to themselves. However, it is worth noting that all persons who work at mines are covered by the protections of Section 105(c) because they are “miners” under the Act, and I have handled a number of cases involving Section 105(c) actions brought by safety managers and even vice president-level supervisors against their employers.

The survey questions are themselves troubling on a number of levels, because they could be viewed as encouraging union organizing efforts, as well as for lodging complaints and triggering enforcement actions against specific mine operators (the questionnaire, although technically anonymous, does ask for union membership status as well as identification of the mine where the respondent works). It also includes such questions as:

• Whether the miner “trusts” mine management to provide a safe workplace;
• Whether, when a safety hazard is pointed out, mine management fixed the problem;
• Whether the miner can point out safety hazards without worrying about consequences;
• What methods the mine offers as ways to report safety concerns;
• How mine management provides information about mine safety rights;
• Whether the miner “knows enough about the Mine Act to recognize a violation when it happens”;
• Whether the miner was aware of his/her legal right to: make a complaint to MSHA or the state, get X-rays for signs of black lung, refuse to operate equipment that the miner is not trained to use, refuse to work in unsafe conditions, and to complain to MSHA about retaliation for exercising rights under the Mine Act;
• Whether the miner has failed to report a safety hazard out of fear of retaliation;
• Whether the miner has received a “negative reaction” from coworkers or management after reporting a hazard;
• What types of “negative reactions” were received (e.g., loss of work hours or “perks,” being teased or threatened by other miners, on-the-job discipline, and unexpected drug/alcohol tests); and,
• Whether the miner has failed to report an injury or illness because of the loss of a bonus or prize under the mine’s incentive program or adverse action under the disciplinary system.

The link to the materials, including the questionnaire, the supporting statement for Paperwork Reduction Act purposes, the Federal Register notice, and comments that have been submitted, are available at https://webapps.dol.gov/federalregister/HtmlDisplay.aspx?DocId=26143&AgencyId=1. The comments should be sent by email to richie.celeste.j@dol.gov or faxed to 202-693-5960. Remember, the survey used for coal now is likely to be expanded to the full mining industry in the future so this may be your only opportunity to provide input!

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, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.