R. Brian Hendrix
Husch Blackwell LLP
Hazard Complaints
Section 103(g)(1) of the Federal Mine Safety and Health
Act:
Whenever a representative of the miners or a miner . . . has reasonable grounds to
believe that a violation of this Act or a . . . standard exists, or an imminent danger
exists, such miner or representative shall have a right to obtain an immediate
inspection by giving notice to the Secretary . . . Any such notice shall be reduced
to writing, signed by the representative of the miners or by the miner, and a copy
shall be provided the operator or his agent no later than at the time of inspection,
except that the operator or his agent shall be notified forthwith if the complaint
indicates that an imminent danger exists. The name of the person giving such
notice and the names of individual miners . . . shall not appear in such copy or
notification. Upon receipt of such notification, a special inspection shall be made
as soon as possible to determine if such violation or danger exists in accordance
with the provisions of this title. If the Secretary determines that a violation or
danger does not exist, he shall notify the miner or representative of the miners in
writing of such determination.
© 2016 Husch Blackwell LLP
Two Types of Hazard
Complaints?
Two Types of Hazard Complaints
First type is a Section 103(g) complaint:
i.
ii.
iii.
Is a reasonable belief that an imminent danger, a violation of a
mandatory safety or health standard, or a violation of the Mine
Act exists; AND
Is communicated to MSHA by a person identifiable as a miner
or a representative of miners.
In addition to the name of the miner or representative of
miners, for MSHA administrative purposes, the complaint
should include at least one type of contact information, such as
an e-mail address or a telephone number, if provided. If the
complainant does not provide a name or contact information.
© 2016 Husch Blackwell LLP
Two Types of Hazard Complaints
Second type: Other Complaints. An Other Complaint of a
hazardous condition is:
i. Communicated to MSHA by someone other than a miner
or a miners’ representative; OR
ii. Communicated to MSHA by a miner or miners’
representative who has elected not to provide his name or
any other personally identifying information; OR
iii. Communicated to MSHA and does not allege an
imminent danger, a violation of a mandatory safety or
health standard, or a violation of the Mine Act at a mine.
© 2016 Husch Blackwell LLP
Differences between a 103(g) and an
Other Complaint?
“The procedures for receiving, evaluating, investigating,
and documenting hazardous condition complaints are the
same for Section 103(g) complaints and Other Complaints,
but only Section 103(g) complainants may obtain an
informal review of MSHA’s decision.”
© 2016 Husch Blackwell LLP
MSHA: One call does it all?
Maybe. Sometimes.
MSHA’s National Contact Center
Department of Labor’s Office of the Inspector General
(1) September 30, 2016 Report to MSHA:
MSHA CAN IMPROVE HOW IT RESPONDS TO
AND TRACKS HAZARDOUS CONDITION
COMPLAINTS
(2) September 29, 2006 Report to MSHA:
COAL MINE HAZARDOUS CONDITION
COMPLAINT PROCESS SHOULD BE
STRENGTHENED
© 2016 Husch Blackwell LLP
MSHA’s National Contact Center
Vague hazard complaints:
“The vagueness of these complaints was due, in part, to poorly trained call
center staff and a lack of dynamic scripts for taking calls.
“MSHA’s call center contractor conceded that its telephone representatives
generally did not have mining experience, sometimes leading to difficulty in
understanding the caller's situation.”
“[T]he contractor noted that mining terminology was challenging for call center
staff . . . [W]e found that call center staff were not sufficiently diligent in asking
follow-up questions when complaints were unclear.
“All of these conditions were also present during our 2006 audit of the
complaint process, in which we found deficiencies in receiving and
documenting telephone calls may have diminished the effectiveness of the call
center as a mechanism for filing complaints.”
© 2016 Husch Blackwell LLP
© 2016 Husch Blackwell LLP
MSHA Discrimination Complaints
What’s at stake?
A huge, expensive distraction:

MSHA investigation (on-site, document requests,
interviews)

Temporary reinstatement if claim “not frivolous”

Litigation (attorneys, experts, discovery, depositions, trial)

Morale and contagion (it spreads!)

Permanent reinstatement
Broad Mine Act rights
 Mine Act Section 105(c): Congress used broad language to
encourage employees to exercise safety and health rights.
 Section 105(c) covers everyone at a mine: rank and file or
hourly miners, applicants for employment, management
level employees, and miners’ representatives.
 Section 105(c) permits a complainant to “sue” the employer
even when the Secretary of Labor (MSHA) turns down the
case.
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© 2016 Husch Blackwell LLP
Section 105(c)(1) of the Mine Act
(c)(1) No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory
rights of any miner . . . because such miner . . . has filed or
made a complaint under or related to this Act, including a
complaint notifying the operator . . . of an alleged danger or
safety or health violation in a coal or other mine, or because
such miner . . . is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101 or because such miner . . . instituted or caused to be
instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding, or because
of the exercise by such miner . . . of any statutory right afforded
by this Act.
© 2016 Husch Blackwell LLP
MSHA’s 105(c) Investigation “Deadlines”
 Section 105(c)(2): discrimination complaints are to be
filed with the Secretary of Labor within 60 days of the
alleged act of discrimination.
 MSHA’s investigation should start within 15 days of
receipt of a complaint. MSHA will immediately
investigate discrimination complaints requesting
temporary reinstatement.
 Section 105(c)(3): within 90 days of MSHA’s receipt of a
complaint, MSHA should make a written determination
as to whether discrimination occurred.
 MSHA expects to complete the investigation and submit
a final report within 45 days of the date of receipt of the
complaint.
© 2016 Husch Blackwell LLP
Proving discrimination
Protected
activity
Adverse
action
Link or
nexus
What is a
Protected
activity
?
 Filing or making a complaint “under or related to” state or
federal (health and safety) or mining laws.
 Making a complaint to MSHA or another agency.
 Complaining internally to the company (mine operator).
 Complaining to a miner’s representative.
 Includes both direct and indirect communications.
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© 2016 Husch Blackwell LLP
Protected
activity
Is every work refusal a
protected activity?
 No. It is only protected if the miner has a good faith,
reasonable belief that a hazard exists.
 A miner's continuing refusal to work may be deemed
unreasonable after an operator has taken reasonable steps
to dissipate fears or ensure the safety of the challenged task
or condition. See Bush, 5 FMSHRC at 998-99.
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© 2016 Husch Blackwell LLP
What is an
 Termination
 Discipline
 Demotion
 Reduction in Pay
Adverse
action
?
Link or
nexus
Indirect proof is enough
Complainant does not need direct evidence of intent to
discriminate (e.g., manager admitting discrimination).
Circumstantial evidence is enough and shown through:

Hostility toward safety generally,

Disparate treatment of employees, or

“Temporal connection,” i.e. a short time period between
protected activity and adverse action.

Mere knowledge of a protected activity can create inference
of improper motive.
© 2016 Husch Blackwell LLP
Link or
nexus
“I had other reasons”
Even if the miner engaged in protected
activity, the mine operator can justify
the adverse action with evidence that it
would have taken the adverse action
based on the miner’s unprotected
activity alone.
© 2016 Husch Blackwell LLP
How to avoid a mess
Invite complaints . . . internally.

Provide a functional way to report safety concerns.
Offer an anonymous report option.

Allow reporting to multiple supervisors in case of
discomfort.

Implement complaint and anti-retaliation
policies.
How to avoid a mess
Train your supervisors.
They’re on the front lines, can either prevent or create a
mess, and can be targets of willful conduct allegations.
Ensure safety and investigate.
Interview the complainant and others. Examine the
area/equipment. Bring in an expert/specialist if needed.
Don’t let anyone be exposed to any area/equipment in a
complaint that may be hazardous.
How to avoid a mess
Respond professionally.
Respond to complaints promptly, seriously, and in good
faith, no matter how trivial or how often the miner
complains. Be calm and professional. Don’t joke or talk
about it with others. Treat the complainant normally.
Be transparent.
Keep the complainant updated about the investigation.
Maybe include the complainant in it. Explain conclusions,
fixes, and next steps. Answer any questions.
How to avoid a mess
Have a witness.
Avoid a “he said-she said” case. Try to have a second
person present to witness conversations with the
complainant. It may also ensure that your supervisors
respond properly.
Document everything.
Create a record of the complaint, your responses,
investigation, findings and support, corrective actions,
and any discipline.
How to avoid a mess
Discipline normally.
Protect yourself from claims that you treated a
complainant differently from others. Whenever
discipline is appropriate, follow your normal process
each time. Document performance issues and
discipline.
How to avoid a mess
Get help!
In sticky situations or when MSHA gets involved, your
safety and health attorney can help – to review policies,
advise on strategy by phone/email, or be an objective
third-party to investigate.
Seeking legal advice early on can save a bundle on
legal fees, settlements, or judgments that follow when
an employment issue is not handled properly.
Quiz
After a large storm the night before, Jeff Sinclair, an hourly
employee on your crew, has to walk across a small area that
has 5 inches of water in it. Jeff asks you for a life jacket
because he believes it is a safety hazard. What is your
response?
A.
Laugh
B.
Tell everyone over the radio
C.
Both A and B
D.
Give him the life jacket and
let him get back to work.
© 2016 Husch Blackwell LLP
Quiz

The next day your friend, an hourly employee on your
crew, fails to chock the tires on his truck. This is his first
safety infraction. What is your response?

The day after that Jeff Siniclair fails to chock the tires on
his truck. This is also his first safety infraction.
What is your response?

You MUST be consistent.
© 2016 Husch Blackwell LLP
Questions?
Contact us with questions or for help with:

Reviewing complaint, safety, and anti-retaliation policies.

Training front-line supervisors and management.

Advising on strategy on significant safety complaints.

Conducting privileged complaint investigations.

Defending against discrimination complaints by MSHA or
miners through litigation.
www.huschblackwell.com
© 2016 Husch Blackwell LLP
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