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Massey — What Went Wrong

As Americans mourn the death of 29 miners at Massey Coal’s Upper Branch mine, they are demanding answers. Why did this happen?

Most commentators have blamed the federal Mine Safety and Health Act (MSHA), claiming that it is too weak. Specifically, they blame the MSHA rule that violations that have been challenged and are still on appeal cannot be used to establish a “pattern of violation” forces mine safety officials to keep dangerous mines open.

This isn’t true. This provision only applies to considering relatively minor safety violations as a group. Nothing in it prevents federal officials from closing a mine when current safety violations create an imminent threat of harm. Federal mine inspectors have the authority to shut down sections of a mine that are unsafe and often use it. MSHA isn’t perfect, but it’s not the problem. The feds could have chosen to close Massey’s Upper Branch mine. Why didn’t they?

This isn’t the usual case of a federal agency run by Bush appointees who don’t care about safety. Nor is it a lack of resources; the Mine Safety and Health Administration has enough inspectors to inspect every mine. The safety problems at Upper Branch were known long before tragedy struck.

The real problem is that federal regulators are reluctant to use their authority. If MSHA officials close a mine, they face a firestorm of criticism. Coal industry leaders would complain bitterly to Congress, especially Senators and Representatives from the state where the mine is located. Congress could tell the industry “take a hike. MSHA did the right thing. You should have cleaned up these safety violations yourself”. But they usually don’t. To begin with, many members of Congress are Republicans who side with big business and oppose virtually all regulation. That’s not the case in West Virginia, where both Senators and two of three Representatives are Democrats. But in the other two top coal mining states, Kentucky and Wyoming, all four Senators are Republican.

Even Democrats, however, cater to big business. They have to. Members of Congress have to raise millions of dollars to fund their election campaigns. They can’t afford to offend big donors and corporations and their PACs are the biggest donors of all.

Who stands behind the head of the Mine Safety and Health Administration when he comes under all this pressure? Only the United Mine Workers Union and the rest of organized labor. Fifty years ago, this might have been enough, but not today. Organized labor is a shadow of its former self. Only 12% of American workers belong to unions. In the private sector, it’s only 7%. The sad truth is that corporate America has more influence on Congress than labor.

What is to be done?

Three changes in the law are needed to prevent future tragedies. First, the right to organize must be strengthened. It’s no accident that Massey, Sago, and almost all other mine disasters occur in non-union mines. Unionized employees can only be fired for just cause. If a mine is unsafe, they can refuse to enter it without losing their jobs. Non-unionized employees have no protection against arbitrary firings. Such miners who refuse to enter an unsafe mine will probably lose their jobs. With families to support, they have little choice but to risk their lives by going to work.

While the right to organize is theoretically protected by federal law (the National Labor Relations Act), the penalties for firing workers who try to organize are so trivial that many employers ignore the law. For coal miners, and all other industrial workers, to have real safety, the NLRA must be reformed to provide real protection.

Second, whistleblower protection laws must be strengthened. Employers hate whistleblowers and almost always fire them. According to Tom Devine of the Government Accountability Project, “retaliation isn’t a risk, it’s a certainty”. While whistleblower protection laws exist, most of they are barely worth the paper they’re printed on. Usually it’s not enough for the danger to be real for a whistleblower to be protected; it has to be illegal. Coal miners aren’t lawyers. (If they were, they wouldn’t be working in a coal mine.) They don’t know if an unsafe condition violates the law. If reporting an unsafe condition that turns out not to violate the law costs the worker his job, most people will say nothing. Can you blame them?

Finally, we need campaign finance reform. As long as Congress is financially dependent on big business, the law will always be slanted in favor of corporations. The Supreme Court decision in the Citizens United striking down the McCain-Feingold campaign finance reform law is a huge setback, but Congress has to find a way to enact a new statute that will pass muster with the Court.

Lewis Maltby is president of the National Workrights Institute and the author of Can They Do That? Retaking Our Fundamental Rights at Work (www.cantheydothatbook.com).

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Lewis Maltby

Lewis Maltby

Lewis L. Maltby, President

A nationally recognized expert and prolific writer on human rights in the workplace, Maltby is the founder and president of the Institute. As a senior private sector executive, Maltby learned that human rights and corporate efficiency are not only compatible, but mutually reinforcing. He left the corporate world in 1988 and founded the National Workplace Rights Office of the American Civil Liberties Union. In 2000, Maltby and his ACLU staff realized the need for an independent organization to fight for human rights on the job and created the National Workrights Institute.

B.A. University of Pennsylvania
J.D. University of Pennsylvania

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