By James Sharpe
MSHA found that pre-assessment conferencing of citations and orders (C/Os) could reduce the civil case backlog by 17 percent. Unfortunately, too little data was available from a pilot program to put much stock in that number. Nevertheless, a collateral benefit of more open communications could be a positive impact in its own right. Because conferencing is limited in Coal but universal in Metal/Non-Metal (M/NM), that sector stands to gain the most.
A report issued in November 2011, chronicled an evaluation done by MSHA’s Program Evaluation and Information Resources (PEIR) group of the agency’s pilot pre-assessment program. The purpose of the program was to try and reduce litigation by informally addressing operator concerns over C/Os. A second aim was to create a feedback loop to all parties involved in the hope that knowledge gained from the experience would increase the accuracy and consistency of ticket writing. The pilot was carried out over a 92-day period in 2010 in three MSHA districts: Coal Districts 2 and 6 and the Southeast (SE) M/NM District.
PEIR’s 17 percent figure is suspect because it covers only a small number of C/Os written during the period and thus cannot be considered representative. To its credit, PEIR cautioned against generalizing the results. But its conclusion also represents an average of the data and, as such, the statistic masks significant differences among the three participating districts.
For instance, in District 2 (Pennsylvania), a whopping 46 percent of C/Os that were conferenced were not contested later. But in District 6 (Eastern Kentucky) the percentage came to a trifling 7 percent, and in SE it was 16 percent. These differences are quite dramatic. If District 2, a potential outlier, is taken out of the calculation altogether, 10.5 percent is the conference-only average that emerges. This is much less optimistic than PEIR reports. Still, if SE is roughly representative of the other five M/NM districts, and it might be, its 16 percent figure could be about on the mark in that mining sector.
MSHA has announced that, beginning in January, all six M/NM districts would do pre-assessment conferencing this year. Since only three of Coal’s 12 districts will do so, at least initially, conferencing is sure to have a greater impact in M/NM.
The ultimate benefit is apt to be somewhat variable, though, because each district apparently will be operating the program under its own ground rules. During the pilot, SE cancelled 39 of 196 scheduled conferences. SE officials told PEIR they were dropped if the operator could not identify mitigating circumstances to warrant a conference or had established a pattern of routinely contesting alleged violations. In addition, District Manager Mike Davis made clear negotiations or settlement agreements would not be entertained. Officials in at least one other district, South Central, have said they will not grant conferences without good reason.
Another variable involves the personnel who will conduct the conferences for MSHA. During the pilot, conferences were conducted either by field office supervisors or conference and litigation representatives (CLRs). SE relied on supervisors. It is possible, but by no means assured, that operators will have a greater chance of conference success with a CLR than with a supervisor. That’s because a supervisor would be more likely than a CLR to stand behind his or her inspector. CLRs, more than supervisors, might also feel under pressure to settle.
Industry attorneys have warned operators to approach conferences with caution. This reveals an important variable on the operators’ side, which is their willingness to engage in conferencing at all. The biggest concern seems to be that conferences are seen as a way for MSHA to gain valuable insight into an operator’s defenses without the agency having to tip its own hand. The argument goes that such knowledge could be useful to MSHA in a subsequent contest proceeding.
There is also worry an operator could say something incriminating. And there are process issues: an operator might feel a conference waives his or her legal rights, or that requesting a conference relieves the operator of the requirement to file paperwork to launch a legal proceeding. Neither belief is correct.
Supporting a Return
Nevertheless, operators in general do support a return to the pre-assessment conference process, which MSHA essentially abandoned in 2008. Industry support is based in part on the belief communications between the two sides would improve.
Anything that helps one side appreciate an antagonist’s position through the latter’s eyes usually works out to be mutually beneficial. Hopefully, it will also dial down some of the angry rhetoric generated by the heavy-handed enforcement muscle the agency has flexed in recent years.
For its part, MSHA sees a positive in that communications should also improve among its supervisors, inspectors and CLRs. No one wants to be put in a position to defend shaky paper, most particularly a supervisor.
So the process should provide the supervisor with critical feedback on his subordinate’s performance and lead to the increased accuracy and consistency in ticket writing that everyone wants. Now that truly would be a step in the right direction.