Part II of Section 105(c)’s 2-Headed Monster: The Interference Complaint

This month, we examine the second claim Section 105(c) of the Mine Act allows a miner to bring — that an operator interfered with the miner’s protected statutory rights.

Defining Interference

Section 105(c)(1) states that “[n]o person shall discharge or in any manner discriminate against … or otherwise interfere with the exercise of the statutory rights of any miner.” Unlike discrimination claims, Congress believed interference was more a subtle injury, promising benefits or threats of reprisal directed to miners. Persistent, accusatory interrogations of a miner who complained to the Mine Safety and Health Administration (MSHA) are also prohibited interference.
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Legally Speaking - Jan-Feb 2018

Don’t Allow Bad Deeds to Go Unpunished

At some point, most mine operators have faced a dilemma where their company discovers miners have been doing something improper. The alleged infraction justifies disciplining the miners. After the company investigates, it discovers the miners raised safety concerns in the past. Those concerns, however, are unrelated to the improper activity. Then, the human resources or safety departments ask whether the contemplated discipline exposes the company to discrimination/retaliation complaints under § 105(c) of the Mine Act.
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Legally Speaking - December 2017

One-size Regulation Doesn’t Fit All? Consider a Modification

In recent years, a number of our clients have faced Mine Safety and Health Administration (MSHA) inspectors writing citations based on new interpretations of old standards. Sometimes, the district office rubber-stamps these new “rules” — and sometimes, these seem like district initiates. When the changes demanded by the MSHA to equipment or operations are significant, it is not uncommon for the mine operator to believe the changes actually would decrease, rather than increase, safety. Other times, the operator may believe its approach is at least as safe, and achieves the same goal, as the standard.
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Legally Speaking - October/November 2017

Confirmation of MSHA Nominee Seems Likely
In the September “Legally Speaking” column, Washington D.C., defense counsel Avi Meyerstein discussed his top 10 list of needed Mine Safety and Health Administration (MSHA) reforms derived from his history of contested cases:
1. Stress safety priorities;
2. Seek consistent regulatory applications without improper changes;
3. Accept clear and historically recognized compliance mandates;
4. Require meaningful district manager citation validity conferences;
5. Appoint a powerful MSHA headquarters ombudsman;
6. Require inspector mitigating circumstances information collection and training;
7. Enhance inspector enforcement training;
8. Require human factor accident analysis, including drugs and alcohol;
9. Recognize agency achievements since 1978; and
10.Adopt efficiency and effectiveness tools to build on achievements, recognizing the steep reduction in the number of mines.

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Legally Speaking - September 2017

MSHA Changes Could Make a Real Difference

As the Mine Safety and Health Administration (MSHA) gets new leadership, what changes are in store? Over 40 years, technologies, safety records and industry economics have changed dramatically, but MSHA has not always kept up.
Here are some suggestions that could make a difference.

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