July 2, 2012
The Mine Safety and Health Administration (MSHA) project to elicit input from workers in mining workplaces is underway, and the agency has solicited comment on the initiative, as well as on a 50-plus question survey that some may find controversial. The comment deadline is July 12, 2012, but could be extended if requests are made to do so. The proposal Information Collection Request (ICR) was published in the June 12, 2012, Federal Register.
An initial notice was published back on January 19, 2012, but received little notice from the mining community and only 10 comments were received. Several of those disagreed with the project entirely, noting that it was not necessary for MSHA’s performance of its functions, and that the information would not have practical utility. Still others favored the survey, one claiming that it was well-known, “if you wanted to keep your job, you never said nothing to State or MSHA inspectors bad about any equipment or any boss or the company.”
As part of any ICR, the Department of Labor (DOL) must comply with the paperwork reduction laws by doing a preclearance consultation with the regulated community as to the burden of the information collection in terms of time and financial resources. The ICRs must also be approved by the Office of Management and Budget (OMB), which also clears formal rulemaking initiatives.
The survey is part of a pilot study that MSHA plans to measure “voices in mining workplaces” concerning miners’ knowledge of their rights, their understanding of these rights, and their ability to exercise their rights without fear of discrimination or retaliation. Elsewhere in the DOL, separate but similar initiatives are planned in OSHA-regulated workplaces as well as to survey workers’ knowledge of rights under the federal Fair Labor Standards Act (wage/hour laws). Although the draft ICR did not specify any sector, the version that was published on June 12th is geared to the coal mining sector. However, there is no reason to believe that the outreach will not be expanded to include metal/nonmetal miners as well, especially since the materials in the docket specifically state that, following the pilot study, the DOL will use the results “to inform a full-scale data collection” and the materials filed with the OMB add that the “DOL would like to include other sectors of the mining industry in future studies and full-scale implementation efforts.”
“Voices in the Workplace” is part of the overall DOL strategic plan and, as early as 2010, MSHA Assistant Secretary Joe Main announced this campaign, noting that MSHA was revising its booklet, Guide to Miners Rights and Responsibilities, to make it more user friendly and make sure miners are aware of their right to alert their employer or MSHA of hazardous conditions, to have a miners representative accompany inspectors on inspections, to receive mandatory training during working hours, and to exercise these and other rights free from discrimination. MSHA also produced new videos on miners rights. The survey is just another of the innovative ways that MSHA is using to engage miner “stakeholders.” Other efforts include more thorough investigations of discrimination and hazardous-condition complaints and greater use of the agency’s Spanish-language resources to inform Spanish speaking miners of their rights.
Therefore, miners’ rights has been a huge issue under the current administration and, speaking only for my practice, the volume of Section 105(c) complaint actions pursued by MSHA — including temporary reinstatement actions to give complaining miners full pay and benefits while litigation is pursued — has gone up exponentially. A review of the questionnaire in this ICR suggests that complaints may be further encouraged among miners as a result of this initiative.
In its proposal, MSHA notes that there are “unique data collection challenges” in the mining environment, and it is determining ways to conduct the survey in a setting that “feels non-threatening to mine workers” and also asks questions in a way that reflects the mining culture and practices. The primary research question is “What measures of voice and perceived non-compliance, combined with what modes of data collection, could be best used to track MSHA’s worker protection outreach activity?” The emphasis on determining non-compliance of informing miners of their rights, set forth in its project goal statement, suggests that there could be enforcement actions as a result of the data compiled from miners.
There are actually two to three small-scale pilot projects planned, with differing strategies. One approach involves submission of paper questionnaires to be completed by individual miners during offsite mining-related training sessions (e.g., those conducted through state grants programs or by MSHA itself, perhaps during “Spring Thaw” workshops); the second involves recruitment of miners through use of radio and newspaper ads; and the final approach will be a mail or phone survey, where the agency can obtain a valid list of miners. MSHA plans to survey 125 respondents under each method, for a total of 375 maximum participants for this ICR. MSHA acknowledges that it will not gather sufficient data to be statistically significant.
There is currently no requirement for mine operators to provide a list of miners’ off-site contact information to the agency, although many local union halls will share this information with MSHA. However, as noted in the June 2012 article in Aggregates Manager, MSHA is more frequently utilizing its rights as a “public health agency” to obtain non-mandatory information under Section 108(a)(1)(E) of the Mine Act (via federal court injunction) or through threats to cite operators under Section 103(a) for impeding an inspection or investigation. Therefore, if this survey method goes forward, mine operators can expect MSHA to demand a list of home addresses, phone numbers, and even e-mail addresses for all workers. This information would, of course, then be available to MSHA for use in other situations, such as off-site interviews during special investigations following “unwarrantable failure” citations, for purposes of fining individuals personally under Section 110(c) or criminally prosecuting them under Section 110(d) or (f).
In the ICR notice, MSHA seeks comments on issues such as:
The “circumstances” necessitating this data collection effort, according to MSHA, include the “socio-cultural role of the industry in mining communities, the high-risk nature of the work, the history of workplace catastrophes in coal mines, and the intensity of regulatory attention.” The data compiled will be presented in summary form, in a final report that presents recommendations for further survey instruments to be used throughout the mining industry in the future on miners’ rights issues. Because only miners — not mine operators — will be surveyed, MSHA avers there will be no small business impact from its activities.
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:
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, is https://webapps.dol.gov/federalregister/HtmlDisplay.aspx?DocId=26143&AgencyId=1. The comments should be sent by e-mail to firstname.lastname@example.org 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 email@example.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.