Why do I Have Miners’ Rights?

The Act gives miners and their representatives many rights because Congress wanted to encourage them to take an active, responsible role in matters of mine safety and health.

A good safety and health program depends on the active participation and interest of everyone at the worksite.

Why do I Have Miners’ Rights? (continued)

If you and your fellow miners take advantage of these rights, you can help decrease workplace deaths, injuries and illnesses.

What Are My Statutory Rights?

The right to have a representative accompany MSHA inspectors - §103(f)

The right to obtain an inspection where there are reasonable grounds to believe that an imminent danger or violation exists - §103(g)

Statutory Rights (continued)

The right to challenge an order, action, abatement time, etc. - §105(a), §105(b)(1)(A), and §105(d)

The right to be protected from discrimination based on the exercise of rights afforded by the Act - §105(c)

Statutory Rights (continued)

The right to pay during certain periods when a mine (or part of a mine) has been closed because of a withdrawal order - §111– (Must file with FMSHRC, not MSHA)

The right to a discretionary review by the Commission of any adverse decision - §113(d)

Statutory Rights (continued)

The right to receive safety and health training - §115– provided during normal working hours– compensated at normal rate of pay– compensated for any additional costs while

attending training

Who Has Statutory Rights?

Miners

Miners’ Representatives

Applicants for a mining position

Miners’ Representatives

May or may not be employee of the operator

If employed by the operator, miners’ representative is entitled to participate in MSHA inspections at no loss of pay

If there is no miners’ rep., the miners may select a representative to accompany the inspector on a particular inspection

Miners’ Representatives (continued)

If there is no representative available, the inspector will consult with a reasonable number of miners about health & safety matters

Miners or miners’ reps may challenge any order issued by MSHA including the reasonableness of length of time set for correcting a violation

Miners’ Representatives (continued)

Miners and miners’ reps can request review of ALJ and Commission decisions

Decision process: – ALJ– Commission– District Court of Appeals

Miners

ALL Persons Working at the Mine– Laborers, Equipment Operators, Mechanics,

Electricians,– Supervisors, Fireboss, Foreman, Leadperson,

Mine Manager, – Contract Employees, etc

Applicants for a Mining Position

Any person applying for work at a mining operation or at contract company working at a mining operation.

Elements of Discrimination

Protected Class Protected Activity Adverse Action Nexus Operator’s Defense

Protected Class

Miners

Miners’ representatives

Applicants for employment

Protected Activities

Filing or making a complaint of an alleged danger or safety/health violation

Being subject of medical evaluation leading to possible job transfer--PART 62 will require mine operators to provide miners with monitoring, testing & training regarding noise exposure

Protected Activities (continued)

Being withdrawn from the mine for not having mandatory safety and health training

Refusing, in good faith, to operate unsafe equipment

Refusing, in good faith, to work in unsafe areas (“Good faith” is required on the part of the miner as well as on the part of management’s response)

Protected Activities (continued)

Reporting an accident

Instituting, testifying or assisting in any proceeding conducted under the Act

Protected Activity Summary

Generally, anything pertaining to his/her own safety and health– Safety/health complaints– Refusals made in good faith– Asking for an inspection– Reporting accidents– Etc.

Adverse Actions

Discharge Suspension Reassignment w/loss of pay Harassment Constructive discharge Failure to promote Etc.

Nexus

Latin word meaning Connection– Is there a connection between the protected

activity and the adverse action?

Operator’s Defense

The operator of the mine has the right to present a defense and MSHA must consider that defense when making a decision as to whether or not discrimination occurred

Time Frames

Miner must file complaint within 60 days of alleged discrimination…or have a good reason why that was not possible

MSHA has 15 days to begin a discrimination complaint investigation and issue a recommendation within 90 days

Terminology

Constructive discharge:– Making it so rough on an employee that he/she

quits

Mixed motive:– The miner had engaged in protected activities

but he/she did something else that, alone, would have resulted in the adverse action

Terminology (continued)

Substantial Evidence:– Such relevant evidence as a reasonable mind might

accept as adequate to support the conclusion

Frivolous:– Having no basis in law or fact; of little weight or

importance

Good Faith:– Reasonable, honest belief

Miners’ Responsibilities

Report safety and health concerns to management, or miners’ representatives

Work safely and obey all MSHA and other federal, state, and local regulations as well as company safety/health policies

Wear personal protective equipment and clothing as required

Miners’ Responsibilities (continued)

Smoking Prohibited - §110(g)– You may have to pay a fine of up to $325.00

for each violation if you smoke or carry smoking materials, matches, or lighters into an underground coal mine or into any area of a mine where MSHA has deemed a non-smoking area.

Miners’ Responsibilities (continued)

All agents of corporations who knowingly authorize, order or carry out violations of mandatory safety and health standards, could face the same civil penalties imposed upon the operator as defined in §110(a) and §110(d)– up to $250,000 fine– imprisonment for not more than 5 years– or both

Miners’ Responsibilities (continued)

All operators who willfully violate mandatory safety and health standards, or fail to comply with any order issued under §104 or §107 shall upon conviction face– up to $250,000 fine– imprisonment for not more than 5 years– or both

Miners’ Responsibilities (continued)

False Statements and False Representations §110(f)– You could be fined up to $250,000, or

imprisoned up to five years (or both) if you knowingly make a false statement (orally or in writing), a false certification in an application, record , report, plan, training certificate, or any other document required to be kept or filed with MSHA.

Prior Notification

§ 110(e) Any Person who gives advance notice of an inspection could face a monetary penalty – up to $6,000– imprisonment up to six months– or both