ROCKLAND, Maine — The federal agency that oversees mine safety has filed a complaint against a Rockland company, claiming it illegally fired a worker who reported safety violations.
The U.S. Department of Labor’s Mine Safety and Health Administration based in Arlington, Va., filed a complaint with the Federal Mine Safety and Health Review Commission against Ferraiolo Construction Inc. to reinstate a worker to his former position and provide compensation for wages lost as a result of his being unlawfully fired, according to a news release from the mine safety administration.
The federal agency also is asking that the company be fined $20,000.
A complaint was filed with the mine safety administration on Nov. 29, 2011, on behalf of the worker, who is not named in the news release, claiming the worker was fired Sept. 30, 2011, from his job at a portable gravel plant located in Thomaston.
MSHA investigated the complaint at the Portable Pioneer Plant in Thomaston and found that the miner had engaged in protected activity when he alerted the company about unresolved safety problems, refused to turn on the plant’s generator until required safety guards had been installed and called MSHA to report the company’s failure to install those safety guards, according to the news release.
A telephone message was left Thursday afternoon with both the company president and with the human resources office at Ferraiolo, seeking comment about the complaint.
The MSHA seeks a finding from the commission that Ferraiolo unlawfully discriminated against the worker in violation of the Federal Mine Safety and Health Act of 1977, which states that miners, their representatives, and applicants for employment are protected from retaliation for engaging in safety and-or health-related activities, such as identifying hazards, asking for MSHA inspections or refusing to engage in unsafe acts.
More specifically, an administrative law judge from the commission will determine whether the miner, a general laborer since 2007, had engaged in activities protected under the federal law, and whether plant officials took adverse action against him in retaliation for those activities.
In this case, MSHA is seeking an order requiring Ferraiolo to cease and desist from discharging or otherwise discriminating against the miner or any other miner because she or he engages in protected activity; remove from the miner’s personnel file and other company records any adverse references to him arising from the events leading to the unlawful discharge; and extend an offer to reinstate the miner to his former position, along with the same rate of pay and benefits prior to his unlawful discharge.
Additionally, the federal agency seeks imposition of a $20,000 civil penalty.
“Every miner has the right to identify hazardous conditions and refuse unsafe work without fear of discrimination or retaliation,” said Joseph Main, assistant secretary of labor for mine safety and health. “The Mine Act allows workers to exercise this right without fear of being fired, demoted, harassed, transferred, refused employment or suffering any loss of wages.”
If Ferraiolo thinks this a joke and is going to try to stall it then they had better think again. Even if the MSHA loses the case, and that’s far from a certainty, you can bet that Ferraiolo’s insurance company’s going to take note of it ! And you can bet 3 to 1 against all you want all day long and still lose ’cause it’s gonna be a sure thing that the insurance company is gonna send someone put on their own to check this out. Just cause MSHA might lose the case, which seems unlikely since they have their duck’s in a row, does not mean that the insurance company is gonna go along with the Commission’s ruling. Civil and administrative law are 2 VERY DIFFERENT WORLD’S and they don’t always agree with each other. Any lawyer can tell you that.
MSHA doesn’t lose cases, there might be a reduction in the fine but there will be some sort of penalty and they’ll have frequent visits from the MSHA inspectors from here out.
As usual, there is too much missing information. But, bottom line, the guards for the generator were not in place.
Had the employee been turning on the generator (without guards) ever since 2007, but for “some reason” decided to wait until 2012 to report it? Was it a new generator, without guards installed? Was it a new mandate, and the guards were yet to be installed? Did the employee just find out that the guards were supposed to be installed? Waiting two months after being fired to file a report seems odd. But “the reasons” won’t matter now. The employee will get his settlement and the business owner will be fined and/or worse. Lessons learned.
I fail to see anywhere in the article where Ferraiolo Construction thinks this is a “Joke”.
I agree there is much information not mentioned in this article that led to the decision by MSHA to seek a judgement supporting the claims they make. I find it very hard to believe that MSHA didnt shut this site down sooner if it was in such a state. That would mean the inspectors were not doing the job they are paid to do.
As a person who does work in this field in Maine, I can attest to the need of MSHA, but disagree with the manner in which they perform the inspections. Depending on which MSHA Inspector arrives at a site, means what is considered safe and what is not. It is maddening when one says all is okay and the next goes over the very same machinery and says it’s not. I respect the job they must do enforcing rules that make my job as safe as it can be. But with that said, it is my responsibility as a worker to also ensure that my work area is safe. If as the article said guards were missing, why didn’t the ones who removed them reinstall them after they were removed ( The most common reason is for a repair to belts or bearings or a reduction gear box).
It will be interesting to see the final outcome of this, hopefully the reporter follows up.