Vol. 24, No. 1

In this issue …

Accidents: Worker severely hurt by falling material at Apex Quarry and Cement Plant… pg.1
Two seriously hurt in conveyor incident at Patriot Mining No. 2…pg. 3
Supervisor seriously injured among other incidents at Powellton #1…pg. 4
Driller loses two fingers at Tate Marble Quarry…pg. 5
— Criminal Proceedings: Reckless disregard of Mine Act can lead to criminal charges…pg. 5
— Discrimination: EEOC, Cline companies settle sex discrimination lawsuits…pg. 7
Newmont found to have fired employee for making hazard complaints to MSHA….pg. 8
Judge upholds fine for failing to promptly reinstate fired miner…pg.10
CalPortland sale brings up successorship issues, questions of privilege in discrimination case… pg.11
Veris Gold discrimination case reassigned to second judge…pg. 14
— Fatalities: MSHA informed 13 days after fatal accident at Buckhorn Gold Mine…pg. 5
Miner killed at Linwood Mine apparently sought crystals…pg. 17
R & C Coal, with over $85,000 in overdue fines, has fatality at #2 mine …pg. 17
Five unwarrantable failures found in double fatality at Harmony Mine & Mill…pg. 18
Machine operator died after proximity component was dropped in Dotiki Mine…pg. 21
Mining industry sets new low fatality record in 2016… pg. 24
— Part 50 Reporting: Eye injury reportable where miner could not return to work for remaining shift…pg. 27
— Review Commission Orders and ALJ Decisions…pg. 29

Mine Safety Appears Low-Profile Issue With Administration, Committee

The safety and health of miners received no specific mention at the March 22 confirmation hearing held by the Senate Committee on Health Education, Labor and Pensions with Alexander Acosta, nominee for Secretary of Labor.
In his prepared testimony, Acosta highlighted the issue of unemployment, specifically job exports, U.S. jobs filled by workers from abroad, and a “skills gap,” between U.S. workers’ qualifications and available U.S. jobs. During his presidential campaign, Donald Trump promised to fight job exports.
“Helping Americans find good jobs, safe jobs, should not be a partisan issue,” Acosta said in prepared testimony. “…Congress has enacted workplace safety laws…[I]f confirmed, I will work to enforce the laws under the Department’s jurisdiction fully and fairly. As a former prosecutor, I will always be on the side of the law and not any particular constituency.”
A 21% cut in overall Department of Labor funding for fiscal 2018 has been proposed by the Trump Administration in a summary document, which also made no specific mention of miner safety and health. The “skinny budget” indicated that a portion of the Labor cut would come from job training grants but left the greater portion unspecified.
A more detailed White House budget proposal is expected later this spring.
Acosta currently is Dean of the College of Law at Florida International University in Miami, Fla. From 2005 through 2009, he served as U.S. Attorney for the Southern District of Florida. Also as part of the George W. Bush administration, he headed the Civil Rights Division in the U.S. Department of Justice and before that, was a member of the National Labor Relations Board.
Also a clerk for Samuel Alito, when the Supreme Court justice was a judge with the U.S. Court of Appeals, Acosta has been described by Sen. Mike Lee (R-Utah) as “a good strong conservative.” Among other endorsements, his nomination has been praised by Leonard Leo, executive vice president of the Federalist Society, according to materials distributed by staff at the committee hearing.
Acosta was the child of immigrant parents who struggled to earn a living in the U.S. after they “fled Cuba in search of freedom,” he stated in his remarks. “…I am here today because of them. My success is their success.”
Committee Chairman Lamar Alexander (R-Tenn.), in his opening remarks said that the
Secretary of Labor should properly be titled “Secretary of the Workforce” because of the small percentage of U.S. workers currently represented by labor unions. He listed automation, globalization and terrorism among the causes of employment shrinkage. He also complained of a “regulatory avalanche.”
Ranking Member Patty Murray (D-Wash.) Wanted to know if Acosta would “withstand inappropriate political pressure.” The Secretary of Labor “must be an independent voice,” and should “stand up for workers,” she emphasized.
Under questioning by Sen. Elizabeth Warren (D-Mass.), Acosta repeatedly declined to commit to enforcement of a new OSHA silica standard that was finalized last summer, noting that the White House has ordered a review of all regulations. On Feb. 24 the White House issued a “presidential Executive Order on Enforcing the Regulatory Reform Agenda” that calls for each executive agency to designate a Regulatory Reform Officer to “evaluate existing regulations…and make recommendations…regarding their repeal, replacement, or modification.”
The silica rule’s requirements were due to be phased-in over a 5-year period, starting this June. Besides the silica standard, other recent Labor Department rules concerning overtime pay and the duties of investment advisors were discussed in the hearing.
When the White House has dictated to the Department how to re-evaluate a final rule, “that criteria really regulates…the Department of Labor’s approach to the rule,” he said. To Sen. Chris Murphy (D-Conn.), who questioned enforcement of rules generally during review, he said, “We will enforce all rules…I believe…assuming there is no stay.”
“I believe in a unitary executive,” Acosta also told Murray. “Ultimately we have a boss.” He also stated, “I’ve seen pressure, and I don’t foresee” any occasion to “bow to inappropriate pressure,” he stated. If “we feel that we can’t” obey a directive from above, he said, then “we resign.”
Concerning an issue when Acosta headed the Civil Rights Division, and one deputy was found to be applying political criteria in civil service personnel actions, Acosta disavowed this kind of discrimination. “It should never have occurred, and I deeply regret it,” Acosta said.
“I do not have any confidence that you are the right person for the job,” Warren concluded after pressing him further about his commitment to the new regulations in a second round of questioning.
Senators of both parties wanted input on how Acosta would handle the prospective draconian budget cuts. Acosta indicated that, to the extent given latitude, he was leaning against across-the-board cuts or zeroing-out of entire program areas but might look to support statistically proven activities on a case-by-case basis. For example, some Job Corps centers that are proven effective might be maintained and others closed that have a record of problems.
He expressed support in a general way for maintaining OSHA inspector presence in what might be underserved areas, and for the work of the Women’s Bureau. He also voiced support for maintaining uniform Bureau of Labor Statistics procedures.
He also said, however, when pressed to say that maintaining the Women’s Bureau would be a priority, “If everything becomes a priority, then things are no longer priorities.”
Among other interchanges, several Senators praised Job Corps centers and other successful programs in their states and hoped that they could be maintained. Sen. Mike Enzi (R-Wyo.) suggested that the voluntary VPP program administered by OSHA be expanded to include smaller businesses. Sen. Lisa Murkowski (R-Alaska) expressed hope that a fix could be found to smooth out the visa program that provides foreign workers for seasonal fisheries in the state. Sen. Al Franken (D-Minn.) brought up future pension plan defaults, which Acosta called “an issue that has not yet been solved.” Sen. Susan Collins (R-Me.) praised the Training Adjustment Assistance Program and noted that “older workers…are in many ways the forgotten story.” Senators of both parties agreed that corrective action is needed on the “sub-minimum wage” paid to some disabled workers. Sen. Pat Roberts (R-Kans.) said that he hears from constituents “who feel that they’re being ruled and not governed” and asked concerning regulations, “Can we get a cost-benefits yardstick that makes sense?” Sen. Todd Young (R-Ind.) brought up the difficulties of working couples finding adequate child care, especially in the new “gig economy. ” No questions came up concerning Mine Safety and Health Administration programs.
Sen. Tim Kaine (D-Va.) pressed Acosta, based upon a Washington Post article, about a non-prosecution agreement Acosta’s office arranged while he was a U.S. Attorney, involving a billionaire sex offender. Acosta explained that federal involvement had yielded stronger consequences for the offender than state action would have done alone. He disavowed any support for unusually lenient sentencing arrangements ultimately entered into by the state.
Kaine wanted to know why the non-prosecution agreement was concealed from the public at the time. Acosta said that there was a “time when keeping something confidential” was regarded as normal, but said he recognizes today, “By something not looking public it is looked at with suspicion.”
The fact that miner safety and health took a back seat might be due to the absence of recent front-page news. The last major mine disaster in the U.S. was the Upper Big Branch mine explosion, which took 29 lives on Apr. 10, 2010. That tragedy resulted in the unprecedented criminal conviction and prison time for a company CEO, Donald Blankenship, over his role in the willful violation of mine safety requirements. Last year, for the third year in a row, the U.S. mining industry achieved its safest year on record, in terms of fatality numbers. In all, 26 U.S. miners died from workplace accidents in 2016.
Immediately after the confirmation hearing, Acosta walked away without responding to a question from MS&HN about the potential impact of proposed budget cuts on mandatory Department activities, which would include MSHA “four and two” inspections.
A committee vote on Acosta’s nomination was not yet scheduled. The hearing record was to remain open for 10 days.
An earlier nominee for the Secretary of Labor job, Andrew Puzder, withdrew from consideration after more than one hearing postponement.