UMWA Enters Investigation; Will Public Also Have Access?

The UMWA has just announced that it will be joining in the investigation of he Upper Big Branch explosion as a representative of some of the mine’s employees, under a precedent established after the 2006 explosion at Sago:

TRIANGLE, VA – The United Mine Workers of America (UMWA) has been designated
a miners’ representative in the ongoing investigation into the disaster at
the Upper Big Branch mine in West Virginia, where 29 miners lost their lives
in an April 5 explosion.

“Although Upper Big Branch is a nonunion mine, federal regulations
permit the UMWA to represent the miners at any mine if two or more of them
designate us to represent them on safety issues,” said UMWA International
President Cecil E. Roberts. “That has happened at Upper Big Branch. The
federal Mine Safety and Health Administration (MSHA) has confirmed it.

“The UMWA intends to fulfill our responsibility under federal law to
the best of our ability.” Roberts said. “Our representatives delivered the
papers designating us as miner’s representative to the mine site late Friday
afternoon and did gain access to the property.”

The names of the miners making the request are being kept
confidential due to their concern of possible retribution by Massey Energy,
whose Performance Coal subsidiary operates the mine.

That’s correct: all it takes under federal mine safety law is two miners notifying MSHA that they are designating a certain representative for purposes of mine safety — this can be anyone at all, including a union, and the miners do not need to be union members. This principle was hashed out after Sago, including maintenance of confidentiality concerning the names of the miners represented.

This step will allow UMWA representatives inside access to investigative processes including site visits and any voluntary interviews conducted behind closed doors. They will join representatives of the mine operator, who are normally present for any such interviews.

If any miners or others being interviewed on this basis request confidentiality, precedent is that the federal and state investigators can provide that by excluding both company and miners’ representatives. Interviewees also are allowed to bring a personal representative such as an attorney, if they wish.

Key interview principles were set back in 1985, during the Wilberg mine fire investigation, which I happen to remember because I was there as a public information specialist for MSHA. The Society of Professional Journalists sued MSHA for access to the closed-door sessions, which went on for weeks. The SPJ forced MSHA to tighten its ground rules for such interviews.

As part of its response at the time, MSHA agreed to release transcripts of the interview sessions just as soon as the interview phase of the investigation was basically complete. We then gave out transcripts that had been prepared for the investigators by a professional court reporter. This compromise prevented cross-contamination of individuals’ memories, as might happen with detailed daily news coverage of everything being said. Yet it allowed the media and public to examine the transcripts reasonably promptly, and decide for themselves if the investigation was being fairly conducted.

That precedent was followed in other major investigations for years. I well remember stacks of interview transcripts arriving in the MSHA public information office for mailing to interested reporters (in the days before the Web…does that make anyone else feel old?). And I well remember the extra copies saved for years to meet the occasional later request, until we regretfully had to discard them during an office move, as late as 2002.

The only transcripts held back — and we took this very seriously — were a few where interviewees asked for confidentiality. Investigators would establish at the start of every interview whether the interviewee wanted comments kept strictly private. In practice, only a few interviewees said yes to the option of confidentiality. Their requests were fully respected.

To my knowledge, the distribution of the non-confidential interview transcripts during an investigation never did any harm, and it contributed to public understanding.

Starting in about 2001, however, a general rollback in public information occurred and, among other facets of this, MSHA began to find excuses to withhold transcripts in such investigations, irrespective of the “harm” standard established under FOIA. I saw this from inside MSHA until 2004 and subsequently from outside.

Excuses — as I recall — included the possibility that interviewers might have to go back to one or more interviewees for additional details (traditionally, would just issue supplemental transcripts later); requiring that interviewees sign their transcripts before release; and a simple preference for pushing off all requests for information until MSHA was ready to publish its conclusions. Later, the agency apparently made an efort to treat all investigative transcripts as confidential, whether confidentiality was actually requested or not, and to withhold them even after the investigation was complete.

In one case (I was told), MSHA actually refused to share an interview transcript with the interviewee and his lawyer, on the grounds that the interview had been confidential. (Which of course would make it impossible for the interviewee to sign the transcript. Perfect.)

At Sago, MSHA seemed to be headed down the same road until the state of West Virginia posted transcripts online for all to see, an action that — again — did no harm and contributed to public understanding of the accident, its impact and the process of investigation.

It remains to be seen whether MSHA and OMSL will again conduct in-camera interviews, whether they will again offer confidentiality to interviewees without pressing it upon them, and whether the public will be allowed a window into the proceedings in the form of non-confidential transcripts, public hearings or both.

A side comment: some attorneys in the Departemnt of Labor, in my experience, seemed determined to force MSHA public information practice into the same mold with OSHA.

Some, it appeared, have seen OSHA as the standard article and MSHA as something of a wayward stepchild. OSHA has been part of the department since 1970, while MSHA (formed as MESA in 1973 from one branch of the old Bureau of Mines) was renamed and grafted onto the Department of Labor only in 1978. An 8-year lag, more than 30 years in the past, doesn’t sound like much, but such is the nature of bureaucracy.

OSHA has a tradition of far less openness. One reason for that is that MSHA and OSHA have laws that differ in some critical areas, with MSHA’s being much tougher in key respects. Unlike most, mining is a “pervasively regulated industry.” Unlike OSHA inspectors, MSHA can walk into any mine workplace at any time without employer permission and without needing a warrant. The mine law also specifies that a very wide range of enforcement documents and other information are to be available to the miners and public.

I hope that by now, department attorneys realize that while the two job safety agencies may be sisters, they are far from being twins. Congress made the MSHA law different for specific reasons, including disasters not unlike this latest explosion. It makes no sense to demand that MSHA take its lead from OSHA.

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3 Responses to “UMWA Enters Investigation; Will Public Also Have Access?”

  1. […] transparency of them has declined greatly over the years, check out my friend Kathy Snyder’s post on her Mine Safety Watch blog.  Unlike others who have offered up their views on this issue, Kathy has many years of experience […]

  2. Hello Kathy,

    I ran across this document in a web search.
    Please look at this case study and help expose the truth so we don’t see any more miners getting killed.

    http://ventureminetracer.com/MasseyUBB_case_study

    Thank You, Jack

  3. i am professional visual artist, maybe you’d like to use some of my images? i think it would be nice and fit on your articles 🙂
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