Why do I Have Miners

1
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.

2
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.

3
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)

4
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)

5
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)

6
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

7
Who Has Statutory Rights?

• Miners
• Miners Representatives
• Applicants for a mining position

8
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

9
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

10
Miners Representatives (continued)

• Miners and miners reps can request review of ALJ
  and Commission decisions
• Decision process
• ALJ
• Commission
• District Court of Appeals

11
Miners

• ALL Persons Working at the Mine
• Laborers, Equipment Operators, Mechanics,
  Electricians,
• Supervisors, Fireboss, Foreman, Leadperson, Mine
  Manager,
• Contract Employees, etc

12
Applicants for a Mining Position

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

13
Elements of Discrimination

• Protected Class
• Protected Activity
• Adverse Action
• Nexus
• Operators Defense

14
Protected Class

• Miners
• Miners representatives
• Applicants for employment

15
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

16
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 managements
  response)

17
Protected Activities (continued)

• Reporting an accident
• Instituting, testifying or assisting in any
  proceeding conducted under the Act

18
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.

19
Adverse Actions

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

20
Nexus

• Latin word meaning Connection
• Is there a connection between the protected
  activity and the adverse action?

21
Operators 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

22
Time Frames

• Miner must file complaint within 60 days of
  alleged discriminationor 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

23
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

24
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

25
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

26
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.

27
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

28
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

29
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.

30
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