By Ellen Smith
In a split decision, the Federal Mine Safety and Health Review Commission found that MSHA has the right to request employee contact information to interview mine employees who may have knowledge about conditions in a mine where MSHA was conducting a 110(c) investigation, and where dangerous conditions existed over multiple shifts and for several days.
Chairman Mary Lu Jordan, with Commissioners Robert Cohen and Patrick Nakamura sided with the Secretary’s position that the request made of the operator was not burdensome, did not place an obligation on the employees, and the request was within the scope of the Secretary’s authority under the Mine Act.
Dissenting were Commissioners Robert Young and William Althen.
The case stemmed from an inspection where MSHA found serious and potentially fatal violations of a company’s mining plan, and proposed a $70,000 fine. The mine foreman and face boss were present and knew about the conditions. A second $70,000 fine was proposed for failing to adequately preshift the areas related to the violation. A $45,000 fine was proposed for the company failing to revise its mining plan based on the mining conditions.
After the violations were found, MSHA began a 110(c) investigation, and sought to interview company employees. The MSHA district manager sent a letter stating the agency was conducting a preliminary investigation of possible knowing and willful violations, and requested the names, addresses, positions, shift worked, and telephone numbers of the employees at the Cardinal Mine.
The company refused, stating it would only turn over information with prior approval of each employee. In addition, the company said that MSHA’s request was too broad, since it sought the information for every employee.
MSHA then issued a citation to the company for failing to provide information in violation of Sect. 103(a) of the Mine Act, and when the company again refused MSHA’s request, the agency issued a 104(b) failure-to-abate order.
The company argued to the Commission that it cannot be compelled under Sect. 103 of the Mine Act to produce the contact information sought by MSHA. The company noted MSHA policy that a miner’s participation in interviews is voluntary, and not every employee had knowledge about the conditions. The company also said that the Mine Act does not provide the Secretary the right to the disclosure of private contact information of miners.
The three commissioners who upheld the ALJ’s findings said the Secretary’s request was reasonable, especially given the conditions found combined with the fact that the violations extended over multiple shifts.
Citing the 7th Circuit’s decision in Big Ridge, the Commission said MSHA may reasonably require operators to turn over records, even records they are not required to maintain, when that information would enable MSHA to perform any of its functions under the Mine Act. In this case, MSHA sought to investigate if any agent of the mine knowingly authorized or carried out the violations.
While MSHA could have asked for employee information based on job duties, as suggested by the operator, “such an effort might have inadvertently omitted the identities of persons not directly working on the section who nonetheless would have relevant information.... The request in this case was also sufficiently limited in both time and manner,” since MSHA asked only for the names and contact information of the employees employed at the time of the violations.
The company also said that MSHA’s request amounted to an invasion of privacy. However, any individual employee can choose whether or not to cooperate with MSHA. In addition, allowing MSHA representatives to contact employees away from the mine site ensures that the identity of potential witnesses remains confidential during the course of the investigation, which follows Commission Procedural Rule 29 CFR § 2700.61, which keeps the names of miner informants confidential. In this instance, “MSHA had an understandable preference to speak with potential witnesses in true privacy rather than in a closed room at the workplace of the entity under investigation,” the majority said.
While an individual does have a right to privacy, miners, “in undertaking such employment, also understand the Secretary has the important task of assuring compliance with laws and regulations protecting the health and safety of miners.” Miners have a right to refuse to participate in an investigation by MSHA, but the agency “does not overreach by obtaining their names and addresses in the course of conducting an ongoing investigation into a serious safety situation at a mine.”