Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/756888
40 AGGREGATES MANAGER / December 2016 A program tailored to incentivize and promote safety could violate the Mine Act. Here's what you need to know. Adam J. Schendeman is an associate in Jackson Kelly PLLC's Charleston, W.Va.., of- fice, practicing in the firm's Occupational Safety and Health Practice Group. He can be reached at 304-340-1077 or aschwendeman@ jacksonkelly.com. Safety Incentives and Miners' Rights T he mining industry, like many other industries, has long used safety incentive programs to en- courage employees to work safely and promote a culture of safety in their workplace. Recent trends in the Mine Safety and Health Administration's (MSHA) pursuit of interference actions under § 105(c) of the Mine Safety and Health Act of 1977 (the Mine Act), however, may foretell a future conflict between the agency and mine operators con- cerning safety incentive programs. Specifi- cally, MSHA has maintained in at least one recent case that an incentive program that takes into account lost-time accidents and the issuance of S&S citations interferes with min- ers' rights under § 105(c). In addition to its enforcement of the more traditional 'intentional discrimination' actions pursuant to § 105(c) of the Mine Act, MSHA has seemingly increased its focus on 'inter- ference' actions under the Mine Act. The Mine Act not only prohibits discriminatory action based upon a miner's exercise of statutory rights, it also prohibits persons from engag- ing in actions that interfere with a miner's exercise of those rights. Section 105(c) pro- vides that "[n]o person shall discharge… dis- criminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner… " (emphasis added). Section 105(c)(2) permits a miner or his rep- resentative to file a complaint if he believes "that he has been discharged, interfered with, or otherwise discriminated against" (emphasis added). In his pursuit of these interference ac- tions, the Secretary of Labor (Secretary) has repeatedly advocated for the adoption of the following test to establish a claim of interfer- ence: (1) a person's action can be reasonably viewed, from the perspective of members of the protected class and under the totality of the circumstances, as tending to interfere with the exercise of protected rights, and (2) the person fails to justify the action with a legitimate and substantial reason that out- weighs the harm caused to protected rights. Importantly, and unlike the test in discrimina- tion cases, adverse action does not have to have occurred. Instead, a mere belief that the action is "tending to interfere" with a miner's exercise of rights is enough. Although existing Federal Mine Safety and Health Review Commission (Commission) precedent addresses interference claims, the precedent is less developed when compared to case law involving traditional discrimina- tion complaints, and the Commission has not yet adopted a specific 'test' for evaluating interference claims. The Secretary's proposed test was adopted by two Commissioners, Jordan and Nakamura, in the Commission's decision in UMWA on behalf of Franks and Hoy v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2104-19 (August 2014). However, because a majority of Commissioners failed to join in that adoption, the test is not cur- rently binding as Commission precedent. The by Adam J. Schwendeman ROCKLAW