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Issue link: https://rock.epubxp.com/i/710274
74 • ROCK products • August 2016 www.rockproducts.com FOCUS ON HEALTH & SAFETY A divided Review Commission ruled that MSHA can demand copies of certain personnel records not required to be kept under the Mine Act if the records assist in determining com- pliance with the anti-discrimination provisions of the Act. Chairman Mary Lu Jordan with Commissioners Robert Cohen and Patrick Nakamura said Sect. 103(h) of the Act "broadly authorizes the Secretary to request access to records not required to be kept by operators as long as the records are reasonably required to enable [the Secretary] to perform his function under the Mine Act." In their dissenting opinion, Commissioners Michael Young and William Althen called the Secretary's demand for personnel records a "fishing expedition in hopes [the Secretary] can manufacture a claim for a miner" in his dis- crimination case. The case expands upon a recent May 2016 decision where the majority of commissioners ruled that MSHA has the right to request mine employees' home phone numbers and addresses for purposes of a 110(c) investigation (see: 23 MSHN D-1292). It is also in-line with a previous Commission decision, upheld by the 7th Circuit Court of Appeals, that MSHA has a right to request and review medical, workers' comp and personnel records not required under the Act to assure that mine operators are complying with Part 50 requirements by reporting all accidents and health-related issues (see: 20 MSHN D-1492). The miner claimed he was "directed to do more than my regular job duties on a daily basis, which I would do on week- ends for pay. I also feel that the comments about the union played a part in my discharge." The miner's initial complaint did not explicitly set forth any protected activity. However, in an interview with the MSHA investigator, the miner claimed that "as a belt examiner he had been required to perform work beyond his regular job duties, which made his job so burdensome that he did not have time to correct the safety hazards he found." The miner also claimed he was told by the company that he did not have to record a hazard if it was corrected. In investigating the case, and after the company initially refused to cooperate because the miner did not identify any basis for a claim, MSHA asked for the miner's personnel file, along with files of any other miners who were disciplined, reprimanded or terminated over the previous five year period for engaging in the same conduct as the fired miner. MSHA specifically sought the following information: 1. The miner's personnel file. 2. Any documents showing disciplinary action that was tak- en against the miner by the company. 3. Documents showing any hazards or potentially hazard- ous conditions, including but not limited to pre-shift, on- shift and conveyor belt examination books for the period of July 1, 2008 - Jan. 31, 2009. 4. Any employee handbook or employee manual that was used by the company from Jan. 1, 2004 - Jan. 20, 2009. 5. The personnel files of all employees at the mine who were disciplined, reprimanded, or terminated during the period of Jan. 1, 2004 - Jan. 20, 2009, for engaging in the conduct which led to the termination of the miner in this case. 6. All documents relied upon by the company in its decision to terminate the miner. Again, the company refused, based on the fact that it was enti- tled to know the protected activity alleged by the fired miner. The company was given several chances to turn over the infor- mation, but refused "on the grounds that the request was vague and that privacy concerns prevented the release of the files." Because the company refused MSHA's request, the MSHA investigator then issued a 104(a) citation alleging that the company violated sections 103(a) and 103(h) of the Mine Act by failing to produce requested records. The company was given 45 minutes to turn over the records, and it again refused. MSHA then issued a 104(b) withdrawal order for failing to produce the records for a 105(c) investigation. The agency gave the operator another five minutes to produce the records, and then issued another 104(a) citation for con- tinuing to work in the face of a withdrawal order, and set an abatement time of 10 minutes. When the company continued to refuse, it then became subject to provisions under 110(b) (1) of the Act, and penalties of $5,000/day. A day later the company produced the miner's personnel file, and produced redacted files of four other employees. The citations were challenged, with the company arguing that 104(b) orders cannot be issued for violations where Mine Act Permits Access to Personnel Records in Discrimination Investigation