Whistle blowing in mining and heavy civil construction

A miner who believes he rightfully blew the whistle on his employers is now the center of a nasty litigation marathon—see this link.

A part of the story says this:

Spelled out in the federal Mine Safety and Health Act, a miner’s ability to raise concerns without fear of retaliation is the backbone of modern mine safety law. Any miner who claims he or she was fired or disciplined for raising such issues — so long as the claim isn’t “frivolous” — is entitled to temporary reinstatement on the job as due process takes its course.

According to Oppegard, who’s handled more than a hundred such cases, miners can’t freely bring discrimination complaints to federal officials if they have to worry about their employer suing them after unsuccessful complaints. Most miners simply don’t have the resources to defend themselves against well-funded corporate lawyers, he said.

“People will be afraid to file complaints,” Oppegard said. “If Armstrong Coal is successful, then other mining companies, whether it’s coal or copper or gold or whatever, they’ll use the same tactic. … The anti-discrimination provision of mine [safety law] will be essentially worthless.”

The story is convoluted though. The mine claims the miner was fired for excessive cellphone use, not for complaining about safety.

The report tell us this:

Shemwell’s troubles started in September 2011. After his year and a half as a welder at mining properties in Western Kentucky, Armstrong management fired the 32-year-old for what supervisors deemed “excessive cell phone use” on the job — an allegation Shemwell denied.

Furthermore, Shemwell argued that the cell phone charge was merely a pretext for his firing. In subsequent court filings, he claimed the real reason he was canned was that he’d complained about safety problems at his worksite.

According to Shemwell’s filings with the Mine Safety and Health Administration (MSHA), the federal agency responsible for protecting miners, Shemwell had refused to work in confined spaces where he’d been overcome by fumes, and he’d complained to a superior that the respirators provided to welders were inadequate.

Shortly before Shemwell was fired, he and a colleague also refused to work on an excavator while it was in operation, according to filings.

Luckily, I have never been in a situation where the question of whistle blowing arose. I have however been in many situations where the question arose: “Who and how should I tell about this bad (dangerous, inappropriate, stupid) situation?”

The first time I came across this question was when, as a post-graduate student, I helped Professor Jennings with some calculations for the design of a foundation for a new building. The professor became convinced that the designers of the building had neglected to include wind loading in calculating the loads to be imposed on the building’s foundations. He raised the issue at a design meeting at which both the client and structural engineers were present.

Vehement denial was the response. The professor persisted, and to cut a long story short, eventually withdrew from the project, refusing to issue any recommendations for foundations.

In my consulting career I have on a number of times come across situations where, I believed, another consultant has erred. Always I brought up the issue to both the client and the other consultant with some abject apology about not being an expert on the issue, but having a gut feeling something could be made better. I record that every time comity was soon reached and the changes I sought were made. I have been lucky in having fine clients. I have been lucky in working alongside professional consultants.

I once worked on the OII Project. The first construction manager was moved off site when he tussled with the health and safety lady, who was half his size. She never lost a health and safety battle. The next construction manager opened his first general speech with these words: “You all have my permission and mandate, regardless of your position and company, to stop work that you believe is unsafe.”

We completed $10 million of work without accident. And only once was work stopped by a worker: one of my dozy engineers wandered into the path of the scrapers. The scraper drivers stopped, called a halt, I was phoned, and the dozy fellow removed from site. He is now a financial advisor to some charity. At least he is still alive.

So I pain at the report linked to above. I can understand the need to protest if things are not safe; I know self-motivated systems can and do work; I also know some workers are dozy or otherwise distracted and for the safety of all should not be on the mine or construction site. We will watch this case unfold.

For more from Jack Caldwell, see his blog, I Think Mining>>

Image: Jack Caldwell