Among the most critical provisions of the Federal Mine Safety and Health Act of 1977 is the protection of miners against retaliation for raising health and safety concerns. Two recent decisions by the Federal Mine Safety and Health Review Commission have affirmed the legal rights of miners to be protected against discrimination in the workplace.
In the first case, an administrative law judge with the review commission ordered Cumberland River Coal Co. to reinstate a coal miner to his former job and pay a civil penalty of $30,000. This was a $10,000 increase over the amount originally proposed by the Secretary of Labor.
Charles Howard, who worked at Band Mill No. 2 Mine in Letcher County, Ky., suffered head injuries on the job in June 2010 and was discharged almost immediately upon his return the following May. Howard filed a complaint of discrimination with MSHA, alleging that he was fired for his participation in activities protected by the Mine Act. MSHA initiated an investigation, and upon finding merit to the complaint, filed the case with the review commission.
According to court documents, although Howard was cleared to work by his treating physician, the mine operator refused to allow him to return to his job. Instead, Cumberland River Coal Co. sought the opinion of a different doctor, who after,changing an earlier diagnosis, determined that Howard could not return to work.
“There is no suggestion that Howard was terminated due to poor work performance and there was no incident that would have justified his termination,” wrote Administrative Law Judge Margaret A. Miller. “The only difficulty that [the mine operator] had with Howard was the fact that he continued to make safety complaints and continued to contact MSHA. Finally, not only was there open hostility against Howard, he was treated differently than other miners who had suffered a work-related injury.”
In the second case, the review commission affirmed an order of temporary reinstatement of a miner who worked at Mammoth Coal Processing Plant and River Tipple in Kanawha County, W.Va. , An employee at the plant since 1975, Robert Nickoson was also a miners’ representative, which allowed him to accompany an MSHA inspector during inspections. In a June 2010 inspection, Nickoson, who was also accompanied by a Mammoth representative, pointed out several pieces of equipment in disrepair. This action resulted in the issuance of several violations to the mine operator.
In January 2012, the company suspended him for five days over a dispute about time used for an emergency medical procedure. When Nikoson went back to the mine for a “return to work” meeting, he was informed that he was being terminated due to “insubordinate and unprofessional conduct” at a prior safety meeting.
Miners must be able to freely address health and safety concerns in the workplace. If a miner is denied the right to participate in safeguarding health and safety, it puts at risk not only his safety, but the safety of his fellow miners. Mr. Howard and Mr. Nickoson asserted their rights and the Mine Safety and Health Review Commission found that their actions were supported by facts in their cases.
Joseph A. Main is Assistant Secretary of Labor for Mine Safety and Health.