The top brass at the Mine
Safety and Health Administration (MSHA) have been forced to intervene to quell
an embarrassing uproar that began with a regular inspection at a Western silver
mine and evolved into an angry miners’ petition, secret recordings, a
whistleblower complaint, retaliation, and multiple investigations, including by
a member of Congress.
Soon after inspector Rod Gust arrived
at the Galena Mine in Idaho in November 2014 and before a single citation had
been written, miners and safety personnel began to complain about his aggressive
behavior. Complaints were made to a second inspector, Scott Amos, who suggested
to Gust that he adopt a more cooperative approach, to no avail. Amos then passed
the miners’ concerns on to the inspectors’ Boise Field Office Supervisor, Ron
Jacobsen, but with little apparent effect there either. When the inspection
ended about six weeks later, at least 117 miners had become so incensed, they
signed a petition specifically naming Gust and seeking a congressional
investigation.
In the petition, the miners identified
Gust by name, described him as “overbearing” and his behavior as “misdirected”
and “reckless.” One of several miners who put their concern about the inspector
into writing noted that Gust had said he “hated” a couple of people who worked
at the mine. In addition, the miner recalled Gust stating that “his goal was to
shut this place down,” a warning he repeated several times, according to the
miner.
The miners further contended that
Gust was writing “frivolous subjective citations.” They asked for a probe because “we are in fear
of our safety and it may jeopardize our future employment.” The safety
allegation apparently stemmed from miners’ concerns that Gust was allegedly
asking them to do things they did not believe were safe, while the employment
concern appeared to arise from fear that steep fines could lead to closure of
the mine or layoffs. In fact, the workforce had recently been reduced:
employment fell from 315 workers in 2013 to 245 in 2014, according to MSHA’s
database, although the reduction was likely due to economic conditions, not
MSHA enforcement.
Reached by phone, Gust
referred our questions to MSHA headquarters.
However, before ending the call, he mentioned he had been employed at Galena
while attending college in 1988, then suggested that, since that time, not much
had changed regarding safety at the mine. “But they [the operator] said the
same things then as they do now to their miners,” Gust said. “So they built the
culture, and that’s all I’ll say.” According to MSHA’s database, the current
operator, U.S. Silver – Idaho, Inc., did not own the mine in 1988.
The petition was remarkable in
itself, but was even more startling because Galena miners are members of the
United Steelworkers union. Miners’ unions generally look favorably upon MSHA, a
pro-labor agency within the U.S. Department of Labor (DOL), because the
agency’s mission is to enforce safety and health standards for miners and to
defend workers against mine operators when miners perceive their right to a
safe and healthful workplace has been compromised.
At a meeting in January 2015 covered
by a local newspaper, the Shoshone
News-Press, the miners sounded off about MSHA and Gust to their
congressional representatives, including to U.S. Senator Mike Crapo (R-ID), who
the newspaper said attended in person. Lawmakers promised a full investigation.
At some point, either at the meeting or thereafter, the miners turned over
their petition to Crapo, Amos said. Besides Crapo, Western District officials
also launched a probe. Amos said he encountered an MSHA official conducting an
inquiry when he visited the mine in February 2015.
The miners weren’t alone in
their anger. Gust and his team wrote 85 citations against the mine and five
orders during their year-end inspection in 2014. The citation total was
eye-popping because over at least the previous 10 years, the mine had never
received anywhere close to that number of alleged violations during a single
inspection, according to MSHA’s database on the underground mine, which is located
in an area of the Idaho panhandle known as the Silver Valley. MSHA proposed $49,043
in fines. The operator has formally contested 55 of the tickets.
The agency’s enforcement
actions during the following year, 2015, suggest MSHA was undeterred by the
petition. Inspectors wrote 30 more tickets during a regular inspection during
the February-March period, 18 others in May-June, and 59 alleged infractions
and two orders during their visit in August-September. During the last regular
inspection of the year in the fall, 19 more citations were handed out. The
total number of citations and orders MSHA wrote during regular inspections in
2015 – 128 ‒ is unprecedented for the mine during this century.
In February, their animus
unabated, some miners hurled insults and profanities while others refused to
talk to Amos when he returned for a ventilation inspection, the inspector said.
When the miners’ agitation continued into the next day, Amos said he became
“fed up,” and made a promise to miners that he would do something about their
complaints.
Recorded Meetings
Back in the Field Office the
next day, Amos encountered Gust. Sensing an opportunity to gather evidence of
Gust’ allegedly abusive behavior, Amos secretly recorded the two men’s
98-minute conversation. As the meeting drew to a close, Amos informed Gust he
had just been recorded. According to Amos, that prompted an agitated Gust to
try and grab Amos’s phone with one hand while taking a swing at him with the
other. Amos was able to hold on to his phone and avoid the punch. He also beat
a retreat, leaving the building … in a hurry.
The recording gave Amos the
ammunition he thought would convince his higher-ups that Gust needed to be
corralled. He isolated a short segment of the video which, according to Amos,
showed Gust voicing complaints about; i.e., “berating,” the Galena miners and
mine management. Amos uploaded the segment to YouTube, but in a way that
rendered it private and non-searchable. He then sent a link to the segment to
Jacobsen and Western District management, but according to Amos, “[n]obody
watched the video.”
Frustrated, he sent the
segment itself by email directly to Western District Manager Wyatt Andrews with
copies to MSHA Assistant Secretary Joe Main at MSHA Headquarters in Northern
Virginia, lawmakers and the Department of Labor’s Office of Inspector General
(OIG). Amos said Andrews did not reply, but OIG instructed him to file a
complaint of general wrongdoing with the Office of Special Counsel (OSC), an independent
federal investigative and prosecutorial agency based in the nation’s
capital. He did.
In early March, Amos met with Jacobsen,
his boss, and Western District Assistant Manager Paul Belanger. Belanger
countered Amos’s complaints about Gust by supporting the inspector, and stating
there were mine operators in the Silver Valley who had expressed appreciation
for Gust’s inspection work. Belanger also groused that Amos had gone over his
head and had not given management time to complete its own inquiry. According
to Amos, Belanger punctuated his remarks by “pound[ing] the desk in front of my
face with his fists and [ ] yelling at me.” At this session, Belanger mentioned
that headquarters was sending the head of another Metal/Non-Metal (M/NM) district
to investigate. MSHA has not made public the results of either this
investigation or those that were underway at the mine in February.
As he had done with Gust in February,
Amos recorded the Belanger meeting on his smart phone. As it began, Belanger
asked Amos if he was recording the session. He answered yes. When Belanger
directed him to stop, Amos agreed to do so, but in fact he didn’t. The meeting
lasted 35 minutes, and Amos recorded all of it.
Amos’s recordings led MSHA to propose
suspending Amos without pay for five days and imposing a $1,500 fine. The
charges were that he had secretly recorded both meetings, lied when he said he
was not recording the second meeting, and disobeyed a direct order to stop
recording. Figuring he had nothing to lose, Amos sent an email to every MSHA
employee announcing that he was resigning and explaining why.
With the suspension still hanging
over his head, Amos took medical leave. OSC had previously accepted his
whistleblower complaint for investigation, but when MSHA insisted that Amos
present a medical release to return to work rather than allowing him simply to cancel
his medical leave, OSC suspected retaliation as well.
Around this time, the agency’s
headquarters leadership, apparently concluding it had heard and seen enough,
decided to step in personally to try and bring the matter involving Amos to a
close. It had good reasons: the agency overseeing Amos’s whistleblower rights
was investigating, a grievance filed by Amos’s union against MSHA was pending,
the goings-on had the agency’s rank-and-file abuzz, Idaho lawmakers were taking
an interest and the possibility of media exposure loomed.
On October 26, Patricia
Silvey, MSHA’s Deputy Assistant Secretary for Operations, M/NM Administrator
Neal Merrifield, and a DOL human relations official met separately in
Sacramento with Western District officials and Amos. MSHA has been
understandably mum about what went on behind closed doors with District
officials. However, the evening session with Amos was conciliatory, the
inspector recalled. Soon thereafter,
Amos’s suspension was rescinded.
Besides placating Amos, MSHA’s
efforts at damage control appear to have produced other welcome benefits. The
union informed Amos it would drop its grievance. Although OSC told us they had
no comment on their investigation into Amos’s complaints, an Oct. 28 email to
him from an OSC staff attorney indicated OSC was dropping Amos’s prohibited
personnel practices inquiry. Amos said the MSHA representatives also left the
impression they intended to reach out to the Galena miners.
We contacted MSHA to get their
side of this story and to request they make Gust available for interview. The
agency declined both requests, but in so doing left an impression of unfinished
business. “This issue involves an ongoing personnel
matter, which we can’t comment on,” agency spokeswoman Amy Louviere said Nov. 9.
Crapo’s staff did not respond to a call to his Boise office for information on
the status of the investigation reported by the newspaper.
A Learning Opportunity
The experience, painful as it
must be for the agency, presents a learning opportunity. For starters, MSHA
might wish to take a look at its hiring practices. Gust’s employment with the
agency was his second time around. He had worked there years before and had engaged
in behavior that should have raised a red flag when he was considered for
employment again. On the second
go-around, some individuals who have come into contact with him describe Gust
as “out of control, “very confrontational,” “a bit pushy,” and a “bully.”
History was repeating itself.
In addition, Amos’s complaints
about Gust’s forceful enforcement approach at Galena should have been taken
more seriously. According to Amos, Jacobsen brushed him off by supporting Gust
and saying that Amos should stand with Gust, too. This attitude appears to
highlight a reflexive tough love mentality at MSHA toward mine operators in
general. Maybe that was appropriate at Galena or maybe not, but apparently what
did not register with the Boise Field Office was that it was not just the
operator this time who was doing the hollering; miners were as well. Amos also should
have been shown the professional courtesy of being apprised periodically about
the status of MSHA’s “investigation” into the miners’ complaints, which most
certainly should have been concluded more quickly and disciplinary action taken,
where appropriate.
MSHA needs to ask itself why
it allowed this situation to spin wildly out of control. Because there were
serious personnel, managerial, cultural and communication lapses, it may be the
problem this painful experience has exposed is systemic within the Western
District, perhaps beyond it. When it
comes to potential safety hazards, MSHA encourages mine operators to “find and
fix.” The same advice should apply to
MSHA and its internal organizational shortcomings.
Copyright 2016, James Sharpe, CIH. All Rights Reserved.
