Labor Dept Lawyers Turn Backs on Whistleblowers

One of the nation's top advocates for miners' health and safety, Tony Oppegard, sent a scathing letter last week to the Deputy Solicitor of Labor (SOL), Ronald G. Whiting, mincing no words about their pitiful performance.  Oppegard's letter concerned a particular case involving a worker who was fired for complaining about safety, but its content speaks volumes about SOL's "consistent and undistinguished record" of turning its back on workers who exercise their statutory rights.  As Oppegard foretells:

"If SOL is going to continue to insist that a discrimination case be a clear-cut winner before it will represent the miner, coal miners will continue to file less and less discrimination complaints with MSHA and the mines will become even less safe.  Instead, coal miners will either perform unsafe work in the hope of keeping their job and pray they don't get injured or killed, or they will quit their job and hope they're lucky enough to find another.  Unfortunately, SOL seems to have no idea that oftentimes the right to refuse unsafe work is the non-union coal miner's only remedy to protect his safety, and that it is rarely invoked frivolously."

In this particular case, miner Mr. Gary P. Lewis, who worked at the Manalapan Mining Company, filed a discrimination case with MSHA's Barbourville, KY office under Section 105(c) of the Mine Act.  MSHA's special investigator, Adron Wilson, determined that a violation of 105(c) had occurred (first hurdle) and MSHA's senior officials in headquarters agreed (second hurdle).  But then, the biggest hurdle is getting the Department of Labor's attorneys (that is, the Solicitor's Office) to agree to accept the case; ultimately, these attorneys are the ones who have to litigate it. 

Oppegard reports that SOL turned down Mr. Lewis' case and then, in their latest anti-worker maneuver, refused to allow MSHA's special investigator Adron Wilson testify in the miner's private right-of-action before the MSH Review Commission, as allowed under the Mine Act.  Oppegard writes:

"Your exquisitely-bureaucratic 3 1/2 page excuse for denying Mr. Lewis' request can be boiled down to one sentence on page three: 'DOL has no significant interest in the outcome of the case at this time.'  Amen, brother!  That is the essence of the problem with the Solicitor's Office: you simply don't understand how hard it can be for non-union coal miners in eastern Kentucky to stand up to a coal company's bullying and to file a discrimination complaint with MSHA, and sadly, you apparently don't care."

From SOL's perspective, if they don't recommend the case move forward, and the miner decides to pursue a case privately before the MSH Review Commission, then the miner cannot benefit from the evidence previously gathered by MSHA's special investigator.  Instead, the miner and the employer can simply use the ordinary discovery process.  SOL asserts "the parties who took part in these events [Mr. Lewis' firing] can recollect what was said." 

I about blew my top when I read this excerpt; I can only imagine Oppegard's reaction.  In his rebuttal to SOL he writes:

"Oh really, you don't say?  Well, what if the parties recollect differently?  Or what if the superintendent who fired Mr. Lewis testifies falsely about when the discharge took place?  Does it shock you that company witnesses sometimes testify untruthfully?"

"Surely you don't mean to suggest that there is never conflicting testimony about facts at trial.  So, are you suggesting that the neutral, unbiased testimony of the person [MSHA investigator] who investigated the case might not help the administrative law judge resolve this conflict in the testimony between Mr. Lewis and Manalapan's superintendent?  Frankly, your excuse sounds as if it was written by an ill-equipped first year law student."

I urged everyone reading The Pump Handle who cares about workers' safety and health to read all of Tony Oppegard's letter to Deputy Solicitor Whiting.  It is written with the kind of justice-seeking attitude and passion we should demand of the Department of Labor's attorneys. 

Oppegard closes his letter with:

"I am truly saddened, disgusted and angered by the repeated failures of SOL to stand up for coal miners and their families during the past few years.  Here, SOL had the opportunity to do the right thing and help a coal miner try to prove his case--simply by having one MSHA employee appear for one day at a trial and testify truthfully. [Indeed appearing in court is an integral part of a special investigator's job duties.]  Instead, you chose to harm the miner's case by hiding behind wrongheaded legal distinctions that defy common sense.  Thus, SOL has chosen to assist the coal operator who MSHA's own special investigator found to have discriminated against my client."

"In my experiences representing miners and their families as a private attorney, it has been one such sorry incident after another from SOL. Regrettably, your decision in this case is just the most recent example."

At a recent Senate hearing, former OSHA Assistant Secretary Jerry Scannell (1989-1993) urged the Senators to scrutinize closely the next Administration's nominee for Solicitor of Labor.   Tony Oppegard's letter should be put in the Senators' tickler file and pulled out when they prepare for those confirmation hearings!

Celeste Monforton, MPH is with the Project on Scientific Knowledge and Public Policy  (SKAPP) at The George Washington University School of Public Health.  She had the sincere pleasure to work with and learn from Tony Oppegard when they worked together at MSHA in the late 1990's.