Labor Dept's Solicitor failing safety whistleblowers

It's long past time to breathe some fresh air into the Department of Labor's Solicitor's Office (SOL).  I was hopeful when President Obama nominated M. Patricia Smith in April to serve as the Solicitor of Labor, but since her May 7 confirmation hearing, her appointment is languishing in the Senate HELP committee.  The Solicitor's Office has about 600 employees, many of whom are attorneys working in regional offices across the country, and they are supposed to help DOL agencies accomplish their missions by providing legal advice.  The mission statement includes, ensuring that the

"Nation's labor laws are forcefully and fairly applied to protect the Nation's workers."

However, when it comes to protecting coal miners who have been discriminated against for complaining about safety problems, some attorneys in SOL are failing miserably.

It's imperative that the new Solicitor of Labor be confirmed and that she instill a sense of urgency in her staff, especially with respect to whistleblower and anti-discrimination cases.  I learned yesterday of two troubling examples coming out of SOL's Nashville, TN office, where coal miners are waiting (and waiting) on decisions from SOL attorneys.  

Under the Mine Act, if a miner files a complaint alleging discharge or discrimination because s/he exercised their rights under the Mine Act (e.g. see list here on page 6), as long as the complaint is not deemed frivolous, SOL is supposed to expedite a procedure with the MSH Review Commission to seek temporary reinstatement of the miner.  (Section105(c))   In these two cases, the workers have been waiting nearly 7 weeks for SOL to decide whether their cases are frivolous.  This is after MSHA investigators had already recommended to SOL that they move rapidly with the temporary reinstatement procedure.

An attorney involved in the cases, wrote yesterday to the Regional SOL urging action:

"It is our view that SOL is holding Mr. Gray [one of the coal miners] to a more stringent standard than was contemplated by Congress when it included the temporary reinstatement (TR) provision in the Mine Act.  Indeed, we do not believe that SOL has the discretion not to file a TR application if the miner's complaint is not frivolous (the legislative history says that the Secretary shall seek TR on the miner's behalf). In our view, the miner is entitled to that protection."

He adds:

"And frankly, we are tired of having to beg SOL to do its job every time a discharged miner files a 105(c) complaint with MSHA.  As we have made abundantly clear in this and other cases, the determination as to whether a complaint is frivolous is not supposed to be mixed with the separate determination whether to accept a case on the merits for prosecution, but that appears  to be precisely what your office is doing in this instance." [emphasis added]

For this particular miner, his (illegal) discharge for refusing to perform unsafe work has put a toll on him and his family.  He was hired by another coal mine, but is making $4.50 less per hour, has no medical insurance [which his previous (the offending) employer --North Fork Coal--provided.]   His attorney, Tony Oppegard, also notes that the coal miner, Mr. Gray:

"...is working in much lower coal which is difficult for him to endure (because of his 30 years of working/crawling in the mines).  Mr. Gray has two young (ages 5 and 4) adopted children whom he must care for, and his wife, who suffers from rheumatoid arthritis, has been unable to keep doctor's appointments because they cannot afford the cost."

Correctly noting also:

"It takes substantial courage for a miner in the non-union coalfields of eastern Kentucky to refuse a work order, even though by bolting a deep cut, Mr. Gray would have been exposed to the risk of death or serious injury.  When a miner such as Mr. Gray invokes his safety rights, it is extremely frustrating to be left in the lurch when he seeks MSHA's help upon being discharged for asserting those rights."

It's alarming to me that after the mining catastrophes we've witnessed in U.S. coal mines over the last few years, the Solicitor's Office would have re-read and embraced the legislative history of the Mine Act, including the Senate Committee report which spoke directly to the need to protect miners from retaliation:  

"If our national mine safety and health program is to be truly effective, miners will have to play an active part in the enforcement of the Act.  The Committee is cognizant that if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation. The Committee is also aware that mining often takes place in remote sections of the country, and in places where work in the mines offers the only real employment opportunity..."  [emphasis added]

I've heard colleague say that the confirmation process for Pres. Obama's appointments seems to be going smoothly and as rapidly as possible.  There are websites tracking them and some suggest that his slots are being filled quicker than Bush's or Clinton's.  That may be true, but for workers whose lives and families are relying on SOL's decisions about discrimination cases, "quicker than," is not fast enough.  Those with the power to move the Solicitor of Labor's nomination should do so before they take their summer recess.  There are a fair number of SOL attorneys who need some new marching orders from a progressive, worker-focused leader like Patricia Smith.