Rock Products

JUL 2015

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46 • ROCK products • July 2015 www.rockproducts.com FOCUS ON HEALTH & SAFETY Judge John Kent Lewis fined a mining company $20,000, and said it was highly negligent where a miner had been tem- porarily suspended, given a written warning and a negative evaluation, after complaining to management on three occa- sions about a possible electrical fan violation in a laboratory, which was then cited by MSHA. Judge Lewis called the company's actions a "textbook" ex- ample of discrimination. The company, BHP Mining, took the actions against Don Ar- nold after he had raised concerns about whether a ventila- tion fan in a laboratory met National Electric Code require- ments. Arnold, who was an electrician, had receive a work order on Jan. 19, 2013, to repair some equipment in the lab- oratory. He became concerned after seeing an open-faced motor he found covered in dust. It was noted that there was propane in the laboratory, and Arnold worried about explo- sive mixtures of gases. He told his supervisor of his concerns and returned to work. On Jan. 22, 2013, Arnold showed his immediate supervisor, who did not know anything about the installation, but the supervisor said he did not see a hazard, and said that they should wait, and not tag it out until they knew more about the fan motor and installation. Tagging out the fan would mean the company could not use the laboratory. Arnold was then assigned on Feb. 14, 2013, to conduct an electrical inspection at the lab, and noticed that nothing had been done about the motor, so he contacted the mine's safe- ty specialist – a former MSHA inspector – and asked about the fan motor. At that time, Arnold told the safety specialist that he would lodge a 103(g) hazard complaint with MSHA if the issue was not addressed. With the company's safety specialist with him, Arnold took pictures with his cell phone of the dust covering the motor. He asked the safety specialist if he should tag out the motor, but the safety specialist said he did not know if there was a violation, and he told Arnold not to tag it out. Arnold then contacted the union president, because he was afraid of retaliation if he called MSHA. The union president believed there was an imminent danger because Arnold had told management on three occasions, and nothing was done, so the union president made the hazard complaint to MSHA. Violation An MSHA inspection found a violation and cited the compa- ny. The MSHA inspector said that the company official who accompanied the inspector said several times he knew that Arnold had called in the complaint and expressed anger. The inspector said he had to tell the company official to stop dis- cussing the issue. A confrontation also ensued between Ar- nold and another member of mine management, and MSHA inspectors said they had to step between them to prevent the situation from escalating. Several emails ensued between company officials, and Ar- nold was placed on administrative leave without pay, for an indefinite period of time. He was allowed back to work a week later, but was written up for violating company policy by taking photographs and giving them to MSHA; failing to go up the chain of command before calling MSHA; and failing to tag out an imminent danger, even though his supervisors advised against the tagging out of the motor. He also had his employee evaluation changed by the company to reflect a lower safety rating for failing to tag-out the equipment. The company testified that Arnold's calling MSHA, even though he did not place the call, was "vindictive," and a com- pany witness said he believed that Arnold would stage an unsafe condition as a pretext to call in a 103(g) complaint. The company admitted they suspended him in part for fail- ing to follow the chain of command, and said they had even asked an MSHA inspector to explain that miners should fol- low the chain of command. Judge Lewis said none of the company's arguments were compelling, and showed "a lack of understanding as to the nature of discrimination under the Mine Act." Lewis said company witnesses "seem oblivious to the fact that their open admission to antipathy toward going outside of the 'chain of command' to MSHA was an explicit, open ad- mission to hostility toward protected activity. If anything constitutes protected activity under the Mine Act, then filing (or causing the filing) of a safety complaint with MSHA must be such." Lewis said while the company "is certainly free to ask miners to bring their safety concerns to the company, it cannot punish miners for speaking to MSHA at any time. Euphemistic language about chain of command does not change the fact that in this matter, Arnold was disciplined, in part, because he complained to MSHA." Company Fined $20,000 For Discrimination Case

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