Introduction to Special Investigations Handbook PH05-I-4

1. Introduction to Special InvestigationsHandbook PH05-I-4 Judy R. Peters peters.judy@dol.gov 304-256-3469

2. Chapter 1 • The Technical Compliance and Investigation Office is responsible for overall administration of the special investigations program.

3. Chapter 1 • District manager is responsible for managing his/her special investigations program • The SSI reports directly to the District Manager and is responsible for the daily management of the special investigation program.

4. Chapter 1 • Special Investigators report to the SSI when conducting investigations • DO NOT CONDUCT INTERNAL INVESTIGATIONS against MSHA employees • DO NOT carry weapons • DO NOT conduct physical or technical surveilance

5. Chapter 1 • SI Credentials • Authorized representative or Right of Entry • Complete formal training • On-the-job training • Credentials must be kept secure • Cannot be used for preferential treatment • CAN NOT carry other types of badges

6. Chapter 1 • All investigations are confidential and must not be discussed with any unauthorized persons. • Requests for information in an SI case must be referred to TCIO

7. Chapter 1 • FBI Requests for Assistance • May request background information • Laboratory examinations of evidence • Written requests for identification of fingerprints, etc, must be directed to the FBI headquarters

8. Chapter 2 Miners would have to play an active part in the enforcement of the Mine Act to have a truly effective S&H program.

9. Protected Class • Miners • Representative of Miners • Applicants for a mining position are Protected from retaliation for engaging in safety and health related activities

10. Protected Activity • Identifying hazards To them self or others • Asking for an MSHA inspection 103(g) complaint or Code-A-Phone • Refusing to engage in an unsafe or unhealthy act Work Refusal

11. Priority • Discrimination Complaints are given priority over all other special investigation cases • All available Special Investigation resources will be used to ensure the timely initiation and completion of the cases • Supervisory Special Investigator • Additional resources requested from TCIO

12. Section 428, Title IV • Prohibits discrimination against coal miners who are suffering from pneumoconiosis • Only underground coal miners • Administered by the Employment Standards Administration (ESA)

13. Agreement with ESA • Memorandum of Understanding with ESA to provide additional locations to file complaints • ESA will accept Section 105(c) cases • MSHA will accept Black Lung cases • MSHA will conduct an investigation • If no violation of Section 105(c), will forward complete case file to ESA • If dual violation, will process & forward comlpete copy to ESA

14. Agreement with NLRB • Memorandum of Understanding between MSHA and National Labor Relations Board (NLRB) • Violations of Mine Act • Violations of NLRB • Both TCIO and NLRB are responsible for coordination and consultation in handling discrimination complaints

15. Processing Complaints • Proper coordination and processing ensures efficient action • Filed with any MSHA or ESA office • At least one person in each field office and District office designated and trained to process complaints • At least one alternate

16. Confidentiality • Will be maintained by all MSHA employees involved in the process • Copies of complaints are NOT to be retained by the complaint processor • Only original complaint is to be maintained in the case file • Complaint and file maintained in accordance with Privacy Act

17. Receiving Complaints • Complaint forms may be obtained from any MSHA or ESA office • Provided by Complaint Processor • Complaint form 2000-123 (Page 2-8) • Report Form 2000-124 (Page 2-11) • FMSHRC Rules of Procedure (2007 edition is not in Handbook) • Privacy Act Statement (page 2-16)

18. Lost Wages or Employment • Information on Backpay for Miners (Page 2-17 thru 2-20) • Claimant Expense Search for Work, and Interim Earnings Report (Page 2-21 thru 2-22) • MSHA enforcement personnel must have access to all material

19. In person • Individuals who come into an MSHA office with questions concerning discrimination should be referred to: • Complaint processor • SSI • or Other designated person • Complaint processor • Should discuss general nature of complaint • Provide forms and other documents • Assist in filling out the forms

20. By Telephone • Individuals should be referred to Complaint Processor • Complainant advised he/she may come to any MSHA office to file complaint and be assisted in preparing and filing a complaint • or, Packet mailed to complainant • A cover letter (Page 2-23) • Forms & documents listed on page 2-23 • Certified Mail; return receipt

21. By Mail • Any signed letter or written document received in any MSHA office which alleges a discriminatory act will be treated as a complaint • Information will be transferred to Forms 2000-123 & 2000-124 and attached to the letter • Complainant will sign 2000-124 during investigation • Cover Letter (Page 2-23) • Forms & documents listed on page 2-23

22. Form 2000-123 • Capture pertinent information from complainant on specific items • Include as much information as possible • Advise complainant NOT to include names, addresses and phone numbers of potential witnesses

23. Form 2000-124 • Complainant summarizes the discriminatory action • Brief • Concise • One or two paragraphs • Remedy • Names, addresses, and phone numbers of potential witnesses are not to be included on this form

24. Group Complaints • Filed on behalf of a group of miners • Complaint and remedy is the same for all • Only one case number assigned • One case file prepared • Signed by each person in the group • Separate case numbers and case files • Different or unique issues • Events occurred at different times

25. Referrals to Different Districts • Mine not in the district’s jurisdiction • Complaint Processor shall immediately notify the SSI • Arrangements can be made to forward the information to the appropriate office for processing

26. General Investigative Procedures • Investigation must address five elements of discrimination (Page 2-30) • Protected Class • Protected Activity • Adverse Action • Nexus • Operator’s Defense

27. Protected Class • The complainant must provide evidence that he/she is employed as, or acting in the capacity of, one of the protected classes • Miners • Representative of Miners • Applicant for a mining position

28. Protected Activity • Filing or making a complaint of an alleged danger or safety or health violation • Instituting a proceeding under the Mine Act • Testifying or preparing to testify in any proceeding • Being the subject of medical evaluation and potential transfer under Section 101

29. Protected Activity, cont’d • Enforcement of the safety training provisions of Section 104(g) and Section 115 • Refusing to work in unsafe or unhealthy conditions • Participating in an inspection in accordance with Section 103(a) • Exercising any statutory right afforded by the Mine Act

30. Burden of Proof • Complainant must provide evidence that he/she was involved in activity afforded by the Mine Act • Work Refusals - complainant must make a reasonable attempt to convey their safety and health concerns to management • Complainant must be reasonable in their belief that the condition or work assignment was unsafe or unhealthy

31. Discriminatory Acts • Complainant must provide proof that some type of adverse action occurred • Discharge, Termination, or Lay-off • Demotion • Refusal of employment • Reduction in benefits • Vacation • Bonus • Rates of pay

32. Discriminatory Acts, Cont’d • Change of work hours • Interference with the exercise of the statutory right of miners • Subtle forms of interference • Promises of benefit • Threats of reprisal • Transfer to another position with loss of pay

33. Nexus • Investigator must show by a preponderance of evidence that there is a connection between the protected activity and adverse action • Perceived or real • Prima Facie Case: • Timeliness of events • Evidence of disparate treatment • Admission by discriminating official • Knowledge of miner’s protected activity

34. Operator’s Defense • Operator may rebut the Prima Facie Case or offer evidence to affirmatively defend their actions • The complainant was not involved in protected activity • No discriminatory act • The action taken was motivated by the complainant’s involvement in unprotected activity and adverse action would have been taken in any event

35. Timeframes • All timeframes are initiated from the date complaint is received by an MSHA office • Fifteen Days - All investigations initiated • Forty-Five Days - All case files postmarked and mailed to TCIO (Case on the merits)

36. Temporary Reinstatements • Seven days – notify TCIO and Solicitor • (Page 2-6) • Complainant’s name • Date filed • Date of TR request • Mine name and ID number • Name and phone number of SI • Twenty Days – refer case to Sol or decline • Page 2-33 or Pages 2-34 thru 2-35 • Thirty Days – SOL file case with FMSHRC or decline

37. TR Standard of Proof • The investigation only has to establish there is a “reasonable cause to believe” that a discriminatory act occurred • The case was not frivolously brought as distinguished from the preponderance of evidence standard to prove the underlying discrimination

38. Case on the Merits • Sixty Days – TCIO complete review and refer to SOL or decline • Ninety Days – SOL must file a complaint with FMSHRC or decline

39. Withdrawn Complaints • Complainant may withdraw complaint at any time • Submit request in writing • Discontinuance of Discrimination Complaint (Page 2-26) • Witnessed by an SI • Notarized • Verified by SI if submitted by mail

40. Withhdrawn Complaints, cont’d • Understanding, Settlement, or Agreement • Letter to complainant • Copy to respondents • Prepared by TCIO • Mailed certified; return receipt • Page 2-27 • Any other reason • Letter to complainant • Copy to respondent • Prepared by TCIO • Mailed Certified; return receipt • Page 2-28

41. Hazardous Conditions • Possible hazardous conditions identified during an investigation shall be reported and documented in a memorandum to the file • Referring conditions to the DM • Action taken by the SI • Action taken by the SSI • Action taken by enforcement personnel

42. MSIS Codes • E12 – Knowing/willful Investigations (110) • E05 – Injunctive Actions or Other SI activities (108) • E11 – Discrimination Investigation • T03 – Legal Hearings/Documents

43. Chapter 3 • Injunctive Actions and Assaults on Inspectors • Denial of Entry • Work in defiance of closure order • Attempts to harass inspectors • Attempts to delay inspections

44. Defining Injunctive Actions • An order from a United States District Court commanding a person to do something (such as allow entry) or to refrain from doing something (work in defiance of an order of withdrawal). • Failure to comply with injunction is punishable by contempt of court.

45. Preliminary Injunction • Order issued after a hearing with both parties present pending a full hearing. • Temporary Restraining Order (TRO) may be issued by the court • Must demonstrate that irreparable damage or harm will occur to the party or case before the case can be fully argued in court.

46. Permanent Injunction • Final order requiring the party to comply • Issued after a full hearing or trial • Can use the Preliminary Injunction hearing as basis for the permanent injunction

47. Denials of Entry • Inspection Supervisor immediately contact the DM and assist in preparation of inspector’s summary or events • District manager requests and coordinates injunctive actions • SSI will be responsible for advising and assisting the DM and establish a case file • Office of the Solicitor advises MSHA and files actions

48. Assaults or Harassment • Section 1114, Title 18, United States Code makes it a Federal crime to kill or attempt to kill an officer or employee of the US Government • Crime to forcibly assault, resist, oppose, impede, intimidate, or interfere with any person designated in Section 1114 of Title 18 while engaged in or on account of the performance of their duties.

49. If Assaulted or Harassed: • Leave the scene • Advise parties that it is a Federal crime to assault or harass an inspector • Contact supervisor immediately • Personnel should not return to the mine until instructed to do so by the DM

50. Chapter 4 • Under Sections 110(c) MSHA is authorized to propose assessments of civil penalties against an agent of a corporation (or LLC) for knowingly violating a mandatory safety or health standard • MSHA may also pursue criminal proceedings against an operator who willfully violates a mandatory safety or health standard