Aggregates Manager

December 2016

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AGGREGATES MANAGER / December 2016 41 Commission has since acknowledged that the Franks test is consonant with Commission precedent, by affirming an administrative law judge's (ALJ) use of the test in finding interference, but it has still failed to affirmatively adopt the test. See Sec'y of Labor v. Marshall Cty. Coal, et al., 2016 WL 5868552, WEVA 2015-583-D (Aug. 26, 2016). Despite the Commission's failure to establish the Franks test as precedent, some ALJs have recently used the test in finding interference with miners' exercise of rights under the Mine Act. One such decision involved allegations that a coal operator's bonus program — which took into account production and safety metrics — interfered with miners' statutory rights. In Sec'y of Labor on behalf of Greathouse, et al. v. Monongalia Cty. Coal Co., et al., the Secretary filed interference claims on behalf of six complainants. 38 FM- SHRC 941 (May 2, 2016). The Secretary filed the complaints against several mines owned and operated by subsidiaries of Murray Energy Corp. that had adopted "Safety and Pro- duction Bonus Plans" which offered money bonuses based upon production and safety metrics. The safety metrics were separate from the production metrics and were independently used to determine whether miners would receive a bonus. First, if a lost-time accident occurred that incapacitated a crew member on a certain working section, then the entire crew on that section was disqualified from receiving the bonus for that shift. Second, if an inspector issued a specific type of citation or order (S&S citation, § 104(d) or § 104(b) withdrawal order), all of the crews working on the cited section would be disquali- fied from receiving a bonus for that day. Third, the plans contained a provision that provided for disqualification of a bonus based upon a deviation from a safety policy or plan, even though the threshold for the bonus was already met. The ALJ credited the Secretary's witnesses who testified that both of these aspects of the program interfered with miners' exercise of their rights under the Mine Act. With respect to the lost-time accident metric, the witnesses testi- fied that miners were not reporting injuries because they did not want to lose a bonus for themselves or their crew for that specific shift. The ALJ also credited miners who tes- tified that, with respect to the metric concerning citations and orders, miners were less likely to report dangerous conditions or deviations from policies or plans because do- ing so took time away from production. Ultimately, the ALJ concluded that the plan, including the safety metrics within the plan, interfered with miners' exercise of their rights such as reporting injuries and hazards. Where will this lead? It may be too soon to tell. As with many MSHA enforcement trends, it is initially hard to fore- cast due to the agency's tendency to take enforcement ac- tion first and provide notice or guidance later. In any case, the ultimate facts surrounding the individual enforcement should be determinative. Accordingly, the details of a bonus or incentive plan and, specifically, the metrics used within that plan are important. If an operator uses a plan similar to the ones in Monongalia Cty. Coal, it may very well face challenge from MSHA in the future. Similarly, if MSHA con- tinues to expand upon its 'interpretation' of interference, it is possible that numerous and varied safety incentive plans could come under attack. Regardless, operators should take time now to analyze safety incentive programs to ensure that they are not only properly tailored to encourage the right conduct, but that they are actually doing so. AM A Leader in Mining Construction Since 1924 www.cowin-co.com | (205) 945-1300 Slopes & Tunnels Access & Ventilation Shafts Initial Mine Development Mining Support Crews Highwall Stabilization Gunite & Shotcrete Storage Bunkers Portals & Canopies

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