I need to be totally honest with you, folks. Sometimes I get close to the due date for this column and I’m utterly at a loss about what to write. That was the case a couple of months back, when I told you I wanted to write about developments at the Department of Labor, but couldn’t do it without risking all sorts of political fallout. So, I wrote about MSHA and OSHA instead.
Things aren’t looking any better this month, either. There’s lots of stuff going on, of course, but the political atmosphere is so fraught that I’m leery of wading into those waters at this point. (Okay, that’s a mixed metaphor. But work with me here, people.)
Last night I was messaging with a close friend of mine and whining about the difficulty of writing a column when almost anything I say about current events risks alienating (or worse, infuriating) at least half of my audience. Even though, for the most part, the mining community shares a common approach to safety, the way we implement our business and production goals can involve very significant differences of opinion and philosophy.
So, I was asking this friend about what they thought would be a good thing to talk about. This friend of mine is a former MSHA inspector, special investigator, and conference and litigation representative. We became friends after being on opposite sides of a couple of cases and realizing that despite the fact that we were at different ends of the table, we were both trying to achieve a safe and health workplace for miners. They have a sterling reputation in the industry as an MSHA official who always listened fairly and spoke their mind, unafraid to point out when the operator or MSHA was wrong, and not shy about offering good practical guidance about how to serve the twin masters of safety and compliance. You probably already know this friend by reputation, if not personally. And trust me: if you knew them, you’d like them. Smart, pragmatic, and unafraid to speak truth to power. I’ve learned a ton from this friend in the past, and I still do.
“What should I write about?” I asked. What I got back was not only illuminating but helpful. My friend reminded me that:
“it’s important to share information about professionalism in the agency and how the mine industry should respond to unprofessional or unsafe behavior by an inspector.”
It turns out that’s really helpful advice. Yesterday, I got a call from a long-time client, a mine operator with a genuinely pristine enforcement record. (To be honest, my only beef with this client is that since they’re so squeaky clean, I rarely get to help them with enforcement cases.) It turns out they’re dealing with a new field office over at MSHA, and the new field office supervisor sent them a welcome gift – a whole raft of newbie inspectors who were there to conduct a blitz inspection. Apparently, the inspectors, new to our culture, were less than courteous and wrote some paper that was not only factually and legally wrong, but also reflected a fundamental misunderstanding of how gravity (the legal concept, not the physics principle) works. On top of that, they were extremely difficult to deal with, acting like bullies and refusing to show mine personnel any reasonable or appropriate level of respect. My client tried to reason with the inspectors, and then with their supervisor, to no avail. The field office supervisor gave the mine some relief, vacating one citation and modifying a second to non-S&S, but then refused to make further changes to any of the other paper, or to grant an informal conference. The mine filed a Freedom of Information Act request, and that got turned down as well, for the Kafkaesque reason that the operator was trying to challenge the remaining citations. (Seriously, you can’t make this stuff up.)
Which brings me back to my friend, the former MSHA investigator. When we talked about unprofessional or unsafe behavior, the two of us agreed that your first step should be to call the inspector’s supervisor directly. We also agree that you should very strongly consider following up that call with an email to the supervisor, detailing what you and the supervisor talked about, and you should send copies of your email to the inspector’s assistant district manager and manager, and to MSHA headquarters. This might seem excessive, and I get that. But here’s the deal: the upper levels of MSHA management really do care about receiving information like that, and they’re not oblivious. MSHA management understands that there are discourteous or unprofessional (and occasionally unsafe) inspectors out there, and when they receive multiple complaints about inspector behavior, they will take steps to rein in their problem children.
But MSHA management can’t do anything about a difficult inspector unless they know about the problem. And, of course, it’s way easier for MSHA to clip an inspector’s wings (another mixed metaphor, sorry) if they get more than one complaint about that person. My former MSHA friend says you should also alert your Congressional representative to the problem, but unless things get really out of hand, I would counsel you differently. I’d hold off on a Congressional referral until you absolutely need that level of intervention, but I wouldn’t blame you if you chose that path sooner rather than later.
My friend has one more bit of advice. They say, correctly, that you should never refuse to allow MSHA to enter your site, but in their words, “an individual inspector who has shown unprofessional, unsafe, and/or demeaning behavior toward your employees has no right to be on the site. In fact, you can insist that they be banned from your site.” Those are some wise words right there.
I’d like to say one more thing, not so much about abusive inspectors as about the bigger picture. This is a message that runs through this column at every level. If you’ve taken the time and shown the respect necessary to build the right relationships, you can turn to MSHA brass for help with a difficult inspector and know that your request will be considered seriously and respectfully. I can turn to this friend, a former legal adversary at the agency, for advice because we’ve learned to trust each other over the years, and because we’ve learned that we can work together toward our joint goal of promoting miner safety. It’s not always easy to deal with MSHA, but with time and practice and – this is important – respect, you can accomplish great things by working together with them.