A miner engaged in a "protected activity" under the Mine Act when he made a video tape of leaking mine seals, and showed the tape of the violation at a public hearing held by the Mine Safety and Health Administration, a judge ruled.
Federal Mine Safety and Health Review Commission ALJ T. Todd Hodgdon ruled in favor of Charles Scott Howard, a pre-shift examiner for Kentucky operator Cumberland River Coal Co., owned by St. Louis based Arch Coal.
The victory, however, is bittersweet for Howard who risked his livelihood to draw attention to a potentially fatal condition. Howard was just seriously injured in a mine accident July 26 while doing clean-up work in another one of Cumberland's mines in Virginia. He had been hospitalized in an intensive care unit with a serious head injury, but released to go home on July 29 (17 MSHN 15; pg. 349).
The Mine Safety and Health Administration refused to represent Howard, claiming he did not have a claim for the disciplinary action taken against him by the company. But Lexington attorney, Tony Oppegard, and Wes Addington of the Appalachian Research & defense Fund, agreed to take on Howard's case.
The discrimination occurred at the company's Band River No. 2 Mine in Kentucky.
In March 2007, Howard found that several underground seals were leaking water, and made notes in the preshift examiners book. Besides Howard, one other examiner also noted the leaking mine seals, and brought this to the attention of management. The seals, however, were never repaired.
Leaking seals are terribly dangerous, because if the seals fail, the mine can flood and trap or drown miners.
After the company failed to repair the leaking seals, Howard took video footage of leaking mine seals on April 20, 2007. when the seals still were not repair, he showed the video at an Mine Safety and Health Administration (MSHA) public hearing on July 12, 2007. Almost immediately after the video was shown, MSHA inspectors visited the Band Mill No. 2 Mine and cited the company for an alleged failure to conduct a preshift examination of the seals prior to beginning work, and failing to maintain the seals.
In disciplining Howard for showing the video, the company claimed had a policy where anyone on mine property had to obtain written permission from the general manager to take photos or videos, and on July 27, 2007, the company gave Howard a written warning of disciplinary action for taking a non-permissible video camera underground.
However, the ALJ ruled that the disciplinary action against Howard was a pretext for disciplining him for his protected activities under the Mine Act. The ALJ found that the company policy had not been enforced, violations of the policy "were open and obvious," and "members of the managerial staff routinely failed to abide by the policy or instruct employees to abide by the policy. ... Although the camera policy stated that no one could take photos or shoot videos without the prior, written approval of the General Manager, it is well established that other employees of Cumberland routinely failed to abide by the photography policy."
The ALJ also found that management violation MSHA regulations by taking photographs, with a non-permissible camera, beyond the last open cross cut in the coal mine. Howard's video was not beyond the last open cross cut, and the camera would have been allowed under MSHA regulations.
"Prior to Howard, there is no evidence that anyone had ever complied with the policy, much less been disciplined for not following it," the ALJ wrote. "As the photography policy had never been adhered to or enforced prior to its use with Howard, it clearly was used by the company to cover its disciplining of him for engaging in protected activity."
Judge Hodgdon ordered the company to expunge from Howard's personnel file all references to the unlawful issuance of the written warning of disciplinary action, and to expunge such references from any other records maintained by the company. Reimburse Howard for all reasonable and related economic losses or expenses incurred in the institution and litigation of this case, including reasonable attorney's fees, and post the ALJ's decision at all of its mining properties in Letcher County, Kentucky, in conspicuous, unobstructed places where notices to employees are customarily posted, for a period of 60 days.
Editor's Note: An earlier title of this piece mistakenly listed Massey Energy as the proprietor of the Cumberland mine where the video footage came from. The actual owner is St. Louis based Arch Coal.