Protecting the rights of coal miners

January 30, 2013 by Ken Ward Jr.

In recent months, the U.S. Mine Safety and Health Administration has been patting itself on the back for what it says are stepped up efforts to stop mine operators from discriminating against coal miners who complain about dangerous safety and health practices in the workplace. We mentioned this previously here, and MSHA issued another news release on the issue just yesterday:

The U.S. Department of Labor’s Mine Safety and Health Administration filed 46 requests for temporary reinstatement during the 2012 calendar year, more than double any previous year, with the Federal Mine Safety and Health Review Commission on behalf of miners who submitted complaints of discrimination in the form of a suspension, layoff, discharge or other adverse action. Additionally, the department filed 34 complaints alleging mine safety discrimination during 2012, also more than in any previous year.

The department filed 101 temporary reinstatement requests in calendar years 2009 – 2012, or an average of 34 per year, compared to an average of six per year 1993 – 2008. Additionally, the department filed a total of 105 discrimination complaints with the commission 2009 – 2012, compared to 63 during the prior four-year period.

MSHA chief Joe Main said:

MSHA urges miners to exercise their rights, and actively participate in monitoring safety and health conditions.  We take these rights under the Mine Act very seriously and will vigorously investigate all discrimination complaints.

But there have also been recent incidents that show clearly why MSHA needs to do more. Take the story we’ve mentioned before from Kentucky:

To federal prosecutors, Mackie Bailey is a witness who provided information about dangerous practices at an underground coal mine in Harlan County where a man was crushed to death in June 2011. The company and three supervisors pleaded guilty in federal court.

To state authorities, Bailey is a miner who broke the rules. The Kentucky Office of Mine Safety and Licensing filed a complaint against him for taking part in the dangerous activities he reported to state and federal regulators.

To Bailey and his attorney, that’s an injustice, not just because supervisors ordered Bailey to do unsafe work, but because his information helped convict the people responsible.

“They’re trying to punish the whistle-blower,” said Bailey’s attorney, Tony Oppegard, who previously worked as a federal mine-safety official and as a prosecutor in the state mine-safety agency.

Or, the more recent story that Dave Jamieson did in The Huffington Post:

Within the last 17 months, Kentucky miner Reuben Shemwell got fired from his welding job, sued by his former employer and effectively blackballed from the local mines — troubles that he claims all started when he spoke up about working conditions he considered unsafe.

With the miner now wrapped in a messy legal battle with his former employer, an affiliate of Armstrong Coal, what happens to Shemwell’s case could impact all U.S. miners who claim they’ve been fired or otherwise punished for blowing the whistle in what remains one of the nation’s most dangerous industries.

“I’ve been representing miners in safety discrimination cases for more than 30 years, and this is the first time I know of anywhere in the country where a company has sued a miner for filing a discrimination complaint,” said Shemwell’s attorney, Tony Oppegard. “We think the reason they filed [the suit] was to intimidate him and to intimidate other miners.”

If you’re counting on MSHA to protect the miners, be sure to read this part of the HuffPost story:

Not long after Shemwell filed his discrimination complaint, MSHA officials tried to inspect the site where he’d been working. According to court documents, Armstrong chose to shut the site down rather than subject it to MSHA oversight, which management said would be too costly. Ten workers were laid off.

Shemwell’s discrimination complaint soon cleared the first legal hurdle for mine safety discrimination cases, when a judge ruled the complaint was clearly not frivolous, given how soon after his safety complaints he was fired for excessive cell use. The judge ordered the mine to temporarily reinstate Shemwell at his job as the case moved forward.

But federal officials still had to decide whether or not to pursue Shemwell’s discrimination complaint against Armstrong. In the end, the agency decided to drop it, and Shemwell’s reinstatement was then invalidated.

What happened next shocked Shemwell and his attorney, Oppegard. Armstrong filed suit against Shemwell in Kentucky state court, claiming that the miner had filed a “false discrimination claim” against them, and that his claim amounted to “wrongful use of civil proceedings” — akin to a frivolous lawsuit.

Only then did MSHA truly step into this situation with a little more force:

Oppegard maintains that Armstrong filed the suit expressly to send a message to Shemwell and other mine employees who speak up about safety problems. The filing, he argued, was what’s become known as a “strategic lawsuit against public participation,” or SLAPP suit, which is meant to preemptively intimidate detractors through with the threat of legal costs.

MSHA lawyers seem to agree. The agency filed a complaint against Armstrong earlier this month alleging that Armstrong’s filing of the lawsuit against Shemwell was an act of “retaliation and/or discrimination,” and that it was “an attempt to discourage miners from filing discrimination complaints.”

“Miners, who wish to avoid similar treatment, will be hesitant from asserting their rights,” MSHA’s attorney said in the complaint.

The story continues:

According to Oppegard, who’s handled more than a hundred such cases, miners can’t freely bring discrimination complaints to federal officials if they have to worry about their employer suing them after unsuccessful complaints. Most miners simply don’t have the resources to defend themselves against well-funded corporate lawyers, he said.

“People will be afraid to file complaints,” Oppegard said. “If Armstrong Coal is successful, then other mining companies, whether it’s coal or copper or gold or whatever, they’ll use the same tactic. … The anti-discrimination provision of mine [safety law] will be essentially worthless.”

Shemwell said he wouldn’t be able to afford defending himself without the help of Oppegard (right)  and the Appalachian Citizens’ Law Center, a Kentucky-based legal aid group for miners. He also said his legal fight with Armstrong has become public knowledge in his home of Muhlenberg County, making it hard to find work with other mining companies.

“Talk goes around the mines,” Shemwell explained. “You hear gossip — you hear this, you hear that.”

Lucky for coal miners, there’s more help on the way. Prestigious Skadden Fellowships have been awarded to two law students who plan to go to work representing miners in safety and health matters. Sam Petsonk, a West Virginian and student at Washington and Lee University’s law school, will be doing this work for Mountain State Justice here in Charleston. University of Pennsylvania law student Evan Smith will be working with the Appalachian Citizens’ Law Center in Whitesburg, Ky.

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