Cumberland River Coal ordered to reinstate miner

The U.S. Mine Safety and Health Administration said June 25 that an administrative law judge with the Federal Mine Safety and Health Review Commission has ordered Cumberland River Coal Co. to reinstate miner Charles Howard to his former job and pay a civil penalty of $30,000, increasing MSHA’s original proposed penalty of $20,000.

Howard, who worked at the Band Mill No. 2 mine in Letcher County, Ky., suffered head injuries on the job in June 2010 and was discharged almost immediately upon his return the following May, MSHA said. Howard filed a complaint of discrimination with MSHA, alleging that he was fired for engaging in activity protected by the Federal Mine Safety and Health Act of 1977 on numerous occasions beginning in April 2007. Section 105(c)(2) of the act states that a miner cannot be discharged, discriminated against or interfered with in the exercise of his statutory rights because that miner has filed a complaint regarding a health or safety violation. MSHA investigated, and upon finding merit to the complaint, filed the case with the review commission.

According to court documents, Cumberland River Coal refused to allow Howard to return to his job after being released to return to work by his treating physician. Instead, the company sought the supplemental opinion of a doctor who, after changing his mind from his earlier diagnosis, determined that Howard could not return to work.

“There is no suggestion that Howard was terminated due to poor work performance and there was no incident that would have justified his termination,” wrote Administrative Law Judge Margaret Miller. “The only difficulty that [the mine operator] had with Howard was the fact that he continued to make safety complaints and continued to contact MSHA. Finally, not only was there open hostility against Howard, he was treated differently than other miners who had suffered a work-related injury.”

Among the most critical provisions of the Mine Act, and one of his top priorities, is the protection of miners against retaliation for raising health and safety concerns, said MSHA head Joseph Main. “This decision represents a victory not only for Mr. Howard but for all miners who speak out about hazardous conditions,” he added.

Cumberland River Coal (CRCC) is a unit of Arch Coal (NYSE: ACI).

Miller’s June 15 decision said Howard had been a very high-profile critic of mine safety. “In the months, and even years, before CRCC terminated the employment of Howard, he engaged in numerous protected activities,” Miller wrote. “As early as March, 2007, Howard testified before a Congressional committee about safety issues. In April, 2007 he made a video tape of leaking mine seals. The video was the subject of an email from Valerie Lee to a number of CCRC and Arch Coal management personnel, and an email from Mike Kafoury, counsel for Arch, to a number of others with a link to the video. After being reprimanded, Howard filed his first discrimination case with MSHA. Howard eventually filed four separate discrimination complaints with MSHA, raised safety issues with his supervisors on many, many occasions, filed civil lawsuits based upon discriminatory actions, called MSHA to make safety complaints, asked MSHA to conduct certain safety inspections, filed grievances naming specific managers for failing to protect miners, and engaged in other safety-related activity from 2007 until May, 2011 when the present case was filed. In May, 2011, just before he was terminated, Howard filed a civil lawsuit against CRCC as a result of alleged safety issues. All of these actions clearly qualify as activities protected under Section 105(c)(1) as exercising a statutory right afforded by the Act.”

Miller wrote that CRCC and Arch Coal officials contended there were medical reasons Howard couldn’t return to work, but she found no evidence that this was the case.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.