Unsafe Conditions Versus Unsafe Acts

Unsafe acts — not unsafe conditions — cause the majority of accidents in the mining industry.  That’s why the industry devotes so much time to training, better designs and effective supervision. This isn’t a new or novel observation, and it’s certainly not original to me. I write and speak about this every year. However, it’s not clearly reflected in the Mine Safety and Health Administration’s (MSHA) enforcement actions or in its MSHA’s Accident Investigation Reports. MSHA focuses almost entirely on unsafe conditions, not unsafe acts.

I will offer a couple of reasons why the agency does this and I will also describe how MSHA concedes that an unsafe act is to blame for an accident without actually saying it (and how MSHA cites the operator for that act). In short, when MSHA cites an operator after an accident for a failure to properly task train a miner, chances are good that MSHA recognizes the accident was caused by an unsafe act.

There are two main reasons MSHA focuses on unsafe conditions, not unsafe acts, and those reasons are related. First, in MSHA’s world, miners lack agency. To MSHA, miners are basically minors. Under the Federal Mine Safety and Health Act of 1977 (the Act), the mine operator must “ensure” miners’ safety, and mine operators are the only actors responsible for preventing accidents. To claim otherwise is to “blame the miner.”

In reality, I’d say miners are, as a group, fiercely independent and resourceful. The nature of the work requires people who think independently and can adapt to dynamic mining conditions without a lot of direction.

Miners aren’t children. The vast majority take personal responsibility for their own safety and for the safety of their co-workers. They trust, but they verify. Most are not shy about it either. MSHA’s view to the contrary is, in part, due to a seriously outdated “management vs. labor” approach to labor or industrial relations. This “us vs. them” thinking is still the lens through which many at MSHA still see the mining industry. Looking through the world through that lens has always produced a distorted view of reality, but never more so than today.

Part of it is also due to the decisions Congress made when it enacted the Act. Congress made mine operators strictly liable for violations. With one narrow exception (smoking materials), Congress did not authorize MSHA to cite individual miners (and I’m not claiming that it should have).

However, Congress did not intend for MSHA to blind itself to the responsibility miners have for their safety and health. The reason for that is simple: the overarching purpose of the Act is to improve miners’ safety and health. If you ignore reality — the role and responsibility miners have to improve their safety and health — you will eventually end up at odds with the purpose of the Act. Today, MSHA seems unwilling to acknowledge the role unsafe acts play in accidents.

This is clear from MSHA’s Accident Investigation Reports. “Management did not ensure” is the one phrase found in almost every MSHA accident report.

Miners were present, but nothing they did or could have done would have prevented the accident.  According to MSHA, if management had simply established “policies and procedures” to address whatever caused the accident, it would not have occurred. It seems that management alone prevents accidents.

What does MSHA do when it knows that a miner made a conscious decision to act in an unsafe way? It cites management. If a miner acts in an unsafe manner, expect MSHA to conclude that management failed to properly task train the miner, specifically a failure to provide training or effective task training.

Part 48 defines “task” as a “work assignment that includes duties of a job that occur on a regular basis and that requires physical abilities and job knowledge.”

If the mine operator cannot produce records for or otherwise document the task training it provided, MSHA often assumes that no task training was provided.

Even if the mine operator produces records showing the miner in question had been task trained, MSHA may allege the training provided wasn’t effective. Indeed, MSHA has actually argued that a miner was not effectively trained solely because the miner did not perform the task in question consistent with his or her training. MSHA might also concede that task training was provided, but MSHA will allege that it did not include training on a very specific “safety or health aspect” of the task.

What do you do about this? Document the experience that a miner has with various tasks. If a miner claims to have experience with a task. Make sure that a competent person observes the miner safely performing the task and then document that observation.

Also, identify and describe the specific tasks that miners will be assigned  to perform and make sure that MSHA sees that list. Then, document all the task training that was provided to miners. After they have been tasked trained, have a competent person observe the miner safely perform the task and make a record of that. After an accident, good, detailed documentation won’t bar MSHA from questioning the effectiveness of the training you provide, but it will provide a much stronger defense.

Brian Hendrix is a partner with Husch Blackwell. He can be reached at brian.hendrix@huschblackwell.com.