Appeals court upholds fine for mine worker’s inspection tip-off

Cincinnati — The 6th U.S. Court of Appeals on May 11 ruled unanimously to uphold a citation against a Muhlenberg County, KY, coal mine for violating the Mine Safety and Health Act by providing underground mine workers with advance notice of a Mine Safety and Health Administration inspection.

The court denied KenAmerican Resources’ appeal of an $18,742 fine on the grounds that the citation violated workers’ First Amendment rights.

The incident occurred on April 20, 2012. An MSHA press release states that, during a required inspection of a mine operated by the company, agency inspectors monitored a phone used to contact underground mining personnel. As the inspectors readied to descend from the surface into the mine, they heard a worker in the mine ask the surface-level dispatcher if they “have company outside,” a coded message for MSHA representatives. The dispatcher confirmed.

The inspectors issued a citation to KenAmerican for illegally providing advance notice of an inspection, prohibited under section 103(a) of the Mine Safety and Health Act. The organization appealed, arguing that mine operators are exempt from the law against giving advance notice of an inspection and that the dispatcher merely affirmed MSHA was at the mine.

In the appeals court opinion, Judge Helene White writes: “We need not decide whether section 103(a) is subject to strict or immediate scrutiny because even applying it to the former standard, section 103(a) is narrowly tailored to serve a compelling governmental interest,” in this case, inspecting the nation’s mines.

Further, the opinion amplifies how providing advance notice of an inspection might foster unsafe work practices.

“The miners, knowing the layout of the mine and how long it would take MSHA inspectors to reach them from the portals, would then be able to approximate how much time they have to conceal or fix violations before inspectors arrive, should inspectors decide to inspect their working area,” the opinion states. “Miners would also presumably make an inverse inference: If the dispatcher has not sounded the ‘MSHA inspector alarm,’ that means that MSHA inspectors are not in the mine, and miners can operate unsafely without fear that inspectors will unexpectedly arrive and issue a citation.”

In the release, Department of Labor Solicitor Seema Nanda says “mine workers are safer when federal inspectors can see mine conditions as they exist on a day-to-day basis, not when conditions have been altered to avoid violations.”

MSHA administrator Christopher Williamson adds: “This decision affirms MSHA’s ability to conduct inspections without interference from mine operators as Congress intended.”