UMWA questions Alpha hiring of Massey execs

May 20, 2011 by Ken Ward Jr.

This statement just out from the United Mine Workers of America:

“When the initial announcement of the merger of Alpha Natural Resources and Massey Energy was announced last January, I said, ‘Alpha’s got quite a job on its hands to turn the former Massey mines around from Massey’s safety-last culture…one hopes that Alpha recognizes that sorry record and has a plan in place to move swiftly toward resolving many of those issues.’

“Then came the news that Alpha was placing Massey personnel who played key roles in Massey’s corporate culture into important positions in the merged company. In the wake of the strong report issued yesterday on the Upper Big Branch (UBB) disaster by the West Virginia Governor’s Independent Investigation Panel (GIIP), the wisdom of putting these people into critical slots in Alpha must be called into serious question.

“The GIIP report details one case after another at UBB where the company’s safety record was one of willful disregard for the law and regulations. Indeed, the report points out that Massey’s culture of disdain for safety ‘can only be accepted where the deviant has become normal.’

“Who was directly responsible for this culture? None other than Chris Adkins, Massey Energy’s Senior Vice President and Chief Operating Officer. This is the same Chris Adkins who was in charge when the Aracoma Alma mine caught on fire and two miners were killed. This is the same Chris Adkins who asserted his Fifth Amendment rights against incriminating himself in the UBB investigation and has yet to testify.

“Yet Chris Adkins is slated to be one of the people who Alpha said will ‘spearhead the implementation,’of its safety program. That’s frankly incomprehensible to me. Chris Adkins doesn’t belong in Alpha’s executive offices. He belongs in jail.

“Alpha’s also got a nice office waiting for Shane Harvey, Massey’s General Counsel, who is still pushing the ridiculous notion that the explosion at UBB was caused by some sort of natural gas inundation.

“The GIIP report is clear on the cause and the reason for the tremendous explosion: Massey failed to maintain the mine as it should be maintained, and it failed to do so because people like Chris Adkins just didn’t care whether it was safe or not.

“I wonder if Alpha is going to continue that ‘natural gas’ line of bull once it is responsible for Massey’s failings. I can only hope that they will not, because to do so would be to continue to insult the memory of the 29 miners killed by Massey’s Performance Coal that terrible day.”


28 Responses to “UMWA questions Alpha hiring of Massey execs”

  1. Thomas Rodd says:

    If the captain of a ship where twenty-nine sailors were killed took the fifth in an investigation of the deaths, would the captain be allowed to keep their captain’s license? Would the shipping company be allowed to continue to have that person as captain?

    And why would businesses who value safety want to use the services or products of a company whose executives take the Fifth in safety investigations?

    If Alpha wants to send a “better message,” they should consider saying: “You can take the Fifth in a safety investigation — but as long as you do, find someplace else to work.”

    I have heard of boycotts of “blood diamonds” that are produced in dictatorial companies.

    What about a boycott of “Fifth Amendment coal,” produced by people who won’t tell the truth in safety investigations?

  2. Mo Persinger says:

    Great Idea! The Chinese are currently buying most of the met quality coal like that mined at UBB. Why don’t you call them up and pitch your idea. After all, nobody stands against dictators as firmly as the Chinese and they only killed about 30,000 people last year mining their own coal.

  3. Thomas Rodd says:

    Mo, do you have some specific information about who are Massey/Alpha customers who might not want to be buying coal mined by companies whose executives take the Fifth in safety investigations? I’m sure Coal Tattoo readers would be interested.

    I can’t imagine that you are suggesting that if the Chinese are lax, that fact makes what Massey execs did less reprehensible, and somehow takes the “Fifth Amendment” taint off their product?

  4. Mo Persinger says:

    I’m not, but I am suggesting that your boycott idea is silly. It’s never succeeded in affecting the diamond trade and it would never work with a fungible commodity that’s increasingly consumed in far away corners of the world where our notions of individual and human rights are totally unknown and unwanted.

  5. Ted says:

    I fail to see how we share the same level of responsibility for the actions of the Chinese government as we do our own government. While we (not to mention the Chinese people) have little say in how the Chinese government mines coal, we have a lot more say in what happens here and comparing the two is groundless.

  6. Mo Persinger says:

    Granted, except for the small fact that the cars you drive, the buildings you work and live in and the household appliances you use are all made with Chinese and Indian steel.

  7. Ken Ward Jr. says:

    Mo, all …

    This is an interesting discussion … Thanks for the comments.

    There’s no question that our society’s insistence on cheap goods of all sorts drives many things that we all are uncomfortable with — 29 miners getting blown up for example. The drive for cheap electricity and cheap steel and all manner of “cheap” things is a troublesome thing.

    And I welcome the discussion — But I’m going to caution everyone here, especially Mo, to please take a more constructive tone with each other … there’s no need to call someone else’s views or ideas silly. Just say you disagree and explain politely why that is.

    Please everybody take a less confrontational tone with each other. We’re hear to learn from each other.

    Ken.

  8. Montanus says:

    Mo,
    Although you’re right that a large amount of UBB’s coal may go to overseas steelmakers, nonetheless at least some of it has gone to American utilities in recent years.

    See Energy Information Administration Form 923, indicating that in 2009 Performance Coal (that is, UBB) sold coal to a utility on at least a couple occasions. Much more coal was sold to utilities by Massey’s Goals Coal Prep Plant — which may include a certain amount of UBB coal blended with other coal from Edwight and Marfork. So, it seems to me that Tom isn’t wrong to say that exerting pressure on American utilities might be helpful, considering that at least some UBB coal went to utilities, and also that many other underground Massey mines do sell a certain amount of coal to American utilities.

    Also, on the subject for Forms 423/923, I’ve been troubled that EIA is allowing utilities to list only the prep plant instead of the actual mine of origin. EIA should no longer allow this practice. EIA should require publication of all the actual coal mines of origin that a coal company reasonably understands to be included in a blend for a given sale. This will provide clearer information to the public, and it will be better for utilities, because it will help to prevent Massey and other Central App operators from concealing the origins and contents of their coal blends. And if coal companies do not want to supply this information, then EIA should fine the utilities up to the maximum daily fine of $2750 (the utilities could in turn sue the coal companies for indemnification) and should also seek injunctions requiring the coal companies to provide the full and accurate information. See “Sanctions” at http://www.eia.doe.gov/cneaf/electricity/page/fednotice/923instr.pdf “In such civil action, the court may also issue mandatory injunctions commanding ANY PERSON to comply with these reporting requirements.”)

    Pre-2010 data: http://www.eia.doe.gov/cneaf/electricity/page/eia423.html
    Layout file (explains which columns say what): http://www.eia.doe.gov/Ftproot/pub/electricity/layout08.pdf
    Post-2009 data: http://www.eia.doe.gov/cneaf/electricity/page/eia906_920.html

    (Performance=UBB. See Massey’s list of subsidiaries: UBB http://www.sec.gov/Archives/edgar/data/37748/000114036111013070/ex21.htm)

  9. Thomas Rodd says:

    Mo, surely you are not seriously contending that “our” notions of human and individual righs — whatever that may mean — are unknown in China and India?

    Such a contention would be untenable on many different grounds.

    Could a company legally fire an employee for refusing to answer questions in a safety investigation?

  10. kmills says:

    i work for massey and believe me they are not a safe company it is terrible the stuff they want done. and not to mention when inspectors come in hide and seek they hide so much safety violations its shameful. and set and laugh about what they get away with. i am ashamed to say i work for this company.

  11. Nanette says:

    Well I guess I would never get chosen for jury duty. IMO anyone for any reason takes the fifth, to me they are automatically guilty, period. If they were innocent and had nothing to hide they wouldn’t take the fifth. To hire these people who took the fifth in face of the terrible UBB accident should never be hired in any capacity in the coal industry.

    China has nothing to do with this mess. Let’s all just pay attention to what is happening here at home.

  12. lampropeltis says:

    I work in the industry, albeit peripherally as a contractor. Mr. Ward does a fine job of portraying what goes on, including on the MSHA side (where I work).

  13. HBS1990 says:

    It’s interesting that the UMWA and Roberts are are so critical of Massey executives yet make no mention of the regulatory agencies also “found” responsible by McAteer. McAteer’s report is also very critical of MSHA and OMHS&T yet Roberts doesn’t suggest that the leaders and employees of those agencies belong in jail. Whatever “findings” McAteer makes regarding Massey and its members, management or otherwise, the fact remains that government agents responsible for miners’ safety and health were inside that mine constantly and had the means and authority to enforce the law.

    As to the “investigative report” itself, as a taxpayer, I question the objectiveness of the GIIP since the report contains items and information utterly irrelevant to its purpose. The inclusion of political cartoons, discussions of the election for a WV Supreme Court of Appeals Justice and other circumstantial matters unrelated to the tragedy at UBB diminishes the GIIP’s credibility. The report included personal attacks yet is virtually devoid of scientific analysis and findings. It reads like a closing legal argument rather than an unbiased record of investigation. One wonders if this is what Governor Manchin envisioned when he commissioned the GIIP to move forward with its work.

    As presented, McAteer’s report diminishes the important role served by investigators into the explosion — investigators whose sole purpose is supposed to be to discover the cause of this event and to prevent it from ever happening again. No amount of personal attacks or the GIIP’s citation to news articles and blog postings will do that. That task requires transparent, proven investigation procedures and thorough scientific anlaysis — neither of which are mentioned by the GIIP to support its “findings”. Perhaps Roberts and the UMWA should focus on those failings instead of fueling the personal attacks against executives.

    There’s a difference between a witch hunt and a factfinding investigation and the results of only one of these would include political cartoons and political commentary in reporting its “findings”. What’s most unfortunate about the GIIP’s report and the UMWA’s statement is that the victims and their familes deserve better.

  14. Ken Ward Jr. says:

    HBS1990,

    You used the phrase “personal attacks” three times … could your provide specific examples of what you believe were “personal attacks” on anyone — specifically, examples of personal attacks on Massey executives?

    The references to things like a Supreme Court election, according to the McAteer report, are relevant for providing some context about why the state agency here in West Virginia might not be able to regulate mine safety regarding Massey as well as might be needed.

    The report explains:

    “The reality that powerful industries and their leaders cast long shadows over the state’s government is not unique to West Virginia, nor is it unique to the coal industry. It is a problem facing regulators of any large industry. But, with a powerful national lobby, the coal industry poses unique challenges for small state agencies that try to regulate it with inadequate resources. Although West Virginia has provided more support for mine safety than some other mining states, the state’s budget for mine safety enforcement simply is not enough.”

    http://www.nttc.edu/programs&projects/minesafety/disasterinvestigations/upperbigbranch/chapter10.asp

    Why is it that examining the politics behind coal is not an important role for anyone investigating the worst U.S. coal-mining disaster in nearly 40 years? Please explain.

    Ken.

  15. Casey says:

    Cecil Roberts has been president of the UMWA when much strike violence has taken place over the years. This has included the murder of a WV man leaving the mine site during a strike marked by much violence. By his rational, why is he still in allowed to remain in his position?

  16. Thomas Rodd says:

    Casey — did Cecil Roberts take the Fifth Amenment during a government investigation of that murder? If he had, I suspect that you would mention that fact. Your analogy does not hold up, I am afraid.

    Now, to return to the issue: if the engineers who designed a bridge that collapsed and kiled 29 people, and the contractors who built it, refused to answer questions in a government safety investigation of the collapse — would the engineers and contractors be allowed to keep their top-level jobs, and keep on building more bridges?

    I don’t think so.

    So it is simply amazing that people who have refused to answer questions in a government safety investigation are allowed to keep on managing the dangerous business of mining coal.

    People can debate whether any given person did the right thing about safety — but no one can debate whether people who wish to be entrusted with mine safety decisions should answer questions in a safety investigation of a mining disaster. They should. If they won’t, then they should find another line of work.

    I understand that these individuals have the legal right to remain silent unless they are granted immunity — but their employer has absolutely no duty to tolerate their silence and provide continued employment.

    HBS1990, on this point, it seems like there is a special set of rules for how coal companies can behave when their employees refuse to answer questions in a safety investigation. Looking at the politics of coal may be one way to understand how such a special set of rules has come into being.

  17. Ken Ward Jr. says:

    Tom,

    Are you sure about this:

    “… But their employer has absolutely no duty to tolerate their silence and provide continued employment.”

    ?

    You’re saying that an employer can fire someone for exercising a constitutional right?

    Ken.

  18. Ken Ward Jr. says:

    Casey,

    And one correction … if you’re referring to the death of Eddie York during the 1993 contract strike, I believe that Cecil Roberts was vice president of the UMWA at that time. Richard Trumka, now president of the national AFL-CIO, was president of the UMWA at the time.

    Ken.

  19. Thomas Rodd says:

    Ken, good question. I don’t have time to do the research to talk definitively — there are lots of kinds of employers and lots of constitutional rights — but an instance that comes close to home, that I know of, shows that clearly in some instances an employer can fire someone for exercising a constitutional right.

    The case I know that shows this is Tiernan v. Charleston Area Medical Center, Inc., 203 W.Va. 135, 506 S.E.2d 578, (1998.) The facts were:

    Shortly after the meeting began, Ms. Tiernan entered the room where the meeting was being held accompanied by a newspaper reporter. A CAMC employee standing at the door did not recognize Ms. Tiernan; but, recognized the reporter. The employee informed the reporter she could not enter the meeting. The reporter stated that she was invited by Ms. Tiernan. Ms. Tiernan and the reporter entered the meeting. Both Ms. Tiernan and the newspaper reporter had tape recorders and recorded the meeting. CAMC terminated Ms. Tiernan several hours after the meeting. CAMC’s basis for termination was that Ms. Tiernan’s conduct of bringing the newspaper reporter to a closed meeting was wrong and warranted dismissal. Ms. Tiernan invoked CAMC’s appeal procedures. Her appeal was unsuccessful.

    The WV Supreme Court held that:

    3. An at-will or otherwise employed private sector employee may sustain, on proper proof, a cause of action for wrongful discharge based upon a violation of public policy emanating from a specific provision of the state constitution. Determining whether a state constitutional provision may be applied to a private sector employer must be done on a case-by-case basis, i.e., through selective incorporation and application.

    However,

    4. The Free Speech Clause of the state constitution is not applicable to a private sector employer. In the absence of a statute expressly imposing public policy emanating from the state constitutional Free Speech Clause upon private sector employers, an employee does not have a cause of action against a private sector employer who terminates the employee because of the exercise of the employee’s state constitutional right of free speech.

    The State Supreme Court said a lot in the opinion, including:

    It was persuasively said in Truly v. Madison General Hospital, 673 F.2d 763, 767 (5th Cir.1982), that “ one does not always insure his own retention in employment by wrapping oneself in the first amendment and launching attacks on one’s employer from within its folds. At some point, while the employer has no right to control the employee’s speech, he does have the right to conclude that the employee’s exercise of his constitutional privileges has clearly over-balanced his usefulness and destroyed his value and so to discharge him.”

    The reasoning in this quote could persuasively apply to refusal to answer questions in a government safety organization, I feel.

  20. Casey says:

    T Rodd,
    Asserting the fifth amendment rights is not the main focus of Cecil’s argument. He is stating that certain things happened under an upper level person’s watch and therefore that person is responsible and should not be allowed to continue in that or any related capacity. Certain illegal things have happened under Cecil’s watch too. I see hypocrisy.

  21. Ken Ward Jr. says:

    Casey,

    On interesting difference here … Cecil Roberts was elected by the UMWA membership to his position. One wonders if Massey miners would elect Chris Adkins to be their boss if they had the opportunity.

    Ken.

  22. Thomas Rodd says:

    Casey, it certainly is never hard to find hypocrisy. I’m sure you would admit to this common problem — I certainly would. But the issue here is whether these people who have refused to cooperate with a government safety investigation should be entrusted with safety responsibilities by a company that says it is trying to turn the page.

  23. Ken Ward Jr. says:

    Tom,

    Just so everybody is clear — while the UMWA mentions the fact that Chris Adkins and others refused to testify — that particular issue is not the thrust of their press release. Rather, they are focused on safety problems at Massey while these folks were running the show. The focus on their refusal to testify was something you raised. It’s a reasonable point, but when you say “the issue here is whether these people who have refused to testify …” that’s not the focus of the UMWA statement this blog post was about.

    Ken.

  24. Thomas Rodd says:

    I agree that the focus of the UMWA objection is not their refusal to testify. The focus is whether, as I said, these people “should be entrusted with safety responsibilities by a company that says it is trying to turn the page.” Just so everybody is clear.

  25. Ken Ward Jr. says:

    Tom,

    I’ve been considering what you’ve been saying about their refusal to testify, and I do wonder if you’re being entirely fair.

    I’m not a lawyer, and as I understand it, the 5th Amendment right is not absolute in this country. One has to legitimately be able to argue that one’s testimony might expose one to criminal charges, right? And, prosecutors can undercut the ability of witnesses to take the 5th by offering different sorts of immunity, correct?

    But still, the power of federal criminal prosecutors is a very remarkable thing. Anyone who has watched the federal criminal justice system knows this, and knows that it is terribly important to protect citizens — who are presumed to be innocent — from abuses in that system.

    I take it you’re arguing that corporate officials who are truly committed to safety should have nothing to hide, and should be willing to do their part to investigate deaths in the mines and help find out what happened and how a repeat of it can be avoided. But what about the rights of someone to not have to essentially admit criminal wrongdoing?

    That’s why, it seems to me, that the UMWA is making the more important issue here the safety performance of these individuals — not their taking the 5th or not — but whether they have shown they can and will protect miners from health and safety dangers and not put production ahead of safety.

    Ken.

  26. Thomas Rodd says:

    I see your point, Ken, but I also see another side.

    My thought is (who asked me?) that if Alpha really wants to “turn the page,” they should adopt a policy that cooperating with safety investigations of workplace disasters is a condition of employment at their company. I frankly don’t see such a policy, on balance, as being unfair to anyone.

    Do you in fact have some examples in mind of how post-disaster safety investigations have “abused” the federal criminal justice system, or is that just speculation? I wonder if BP officials are taking the Fifth and keeping their jobs?

    Responding to what you say about the UMWA’s focus: “safety performance” is a subjective and debatable metric, and because these individuals have refused to answer questions, it’s difficult to get the details of their respective involvements in the decisions that led to these innocent deaths.

    But the basic act of providing information to an official safety investigation (or refusing to) is a simple and in my view hardly onerous or unfair criteria that it seems to me any responsible company would have a right to expect. I would agree that such a policy should be subject to exceptions on a case-by-case basis. (Agauin, who asked me?)

    After all, companies (I believe) often require miners to take a urine test to keep their jobs, the results of which can incriminiate them. I remember reading about an enigineer on a train who had to take one after a crash — or lose his job, I guess. What’s different about requiring executives, to keep their jobs, to tell what they know about a disaster? Of course, urine and blood tests have been held to be non-testimonial from a constituaional point of view, but from a corporate/employment perspective, there’s really no difference. Both are procedures designed to get to the truth.

    On your question — I’m no expert, but I think that absent a grant of immunity, it’s not at all difficult to take the Fifth, period. I don’t think “good faith basis” comes into it much if at all.

  27. Ken Ward Jr. says:

    Tom,

    I do wonder about some of the lower level people who inevitably are the ones who are prosecuted in these disasters, and whether the criminal justice system is being fair to them — punishing them harshly, but not going on up the corporate chain.

    Ken.

  28. Thomas Rodd says:

    Ken, I completely agree with your concerns, and you are a lot closer to this whole matter than I am.

    What I am pushing against in my commments (who asked me?) is what seems to be an emerging Alpha/Massey business policy that allows concealing higher-level executive and supervisor conduct to more easily continue.

    That policy is not good for anyone — except maybe those who have something culpable to hide.

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