The Federal Mine Safety and Health Administration (MSHA, pronounced “EM-sha”) has asked a federal administrative judge to order the preliminary reinstatement of coal miner Billy Brannon. Thanks to a tip from Paul Taylor of the Truckers Justice Center, I am glad to read Bill Estep’s article in yesterday’s Lexington Herald-Leader.
Estep’s article reports that Billy Brannon worked at Panther Mining’s No. 1 mine in Cloverlick Hollow, Harlan County, Kentucky — a non-union mine. On March 26, he reported exposed electrical wires to state and federal regulators. On March 27, the company fired him. The company claims it did nothing wrong in firing Brannon. MSHA investigator Stanley Sturgill has concluded that Panther fired Brannon for making the safety complaint. MSHA has now asked the Federal Mine Safety and Health Review Commission to order that Panther reinstate Brannon.
Under the MSHA Act, the Department of Labor must issue a preliminary order of reinstatement when it determines that the complaint is not frivolous. Section 105(c) of the Mine Safety and Health Act.
Brannon’s attorney, Tony Oppegard, is quoted as saying that MSHA is the only federal law that provides for preliminary orders of reinstatement. That is not quite right. There are other federal laws that also provide for preliminary orders of reinstatement for whistleblowers. They include:
1. The Energy Reorganization Act, which has provided for preliminary reinstatement orders since the 1992 amendments.
2. The Surface Transportation Assistance Act (STAA), which protects truck drivers and other employees of motor carriers.
3. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (called “AIR 21”), which protects airline employees.
4. The Pipeline Safety Improvement Act of 2002 (PSIA)
5. The Sarbanes-Oxley Act of 2002, which protects those who report fraud and other violations of securities laws
6. The Federal Rail Safety Act (FRSA)
7. The National Transit Systems Security Act of 2007
8. The Consumer Product Safety Improvement Act of 2008
9. The American Recovery and Reinvestment Act of 2009
The first eight of these laws are enforced through a complaint to the Occupational Health and Safety Administration (OSHA). (The ARRA is enforced through complaints to agency inspectors general.) Unfortunately, OSHA has rarely enforced these laws on behalf of whistleblowers. Many whistleblowers lose out because they are not aware that they have to file written complaints with OSHA within surprisingly short time limits, ranging from 30 to 180 days. That might explain why attorney Oppegard has never heard of these provisions. Unlike the MSHA Act, the other laws require that the whistleblower prove that the protected activity was a contributing factor in the adverse decision. A recent report of the General Accounting Office (GAO) found widespread failures of training, resources, and standards in OSHA’s whistleblower protection program. I hope the new administration will address these concerns promptly, and build a whistleblower protection program that has the effectiveness MSHA is showing in Kentucky.