Workplace Examinations

It is not a requirement that metal/nonmetal mine operators record conditions found during workplace examinations. MSHA created a furor when it issued a program policy letter last November stating that recording of workplace examinations under 30 CFR Parts 56/57.18002 must include a description of conditions found. A reissued Program Policy Letter (No. P10-IV-3) was released on February 17, 2011. This reissued policy reaffirms earlier longstanding policy:

The record of examination must include: (1) the date the examination was made; (2) the examiner’s name; and (3) the working places examined.

While the reissued policy does not include a requirement for recording conditions, it does state: “Prudent operators should include a description of the conditions found which may adversely affect safety or health in the examination record.” While company practices may necessitate recording of as yet uncorrected conditions, such records do not have to be kept with the official record maintained for MSHA compliance purposes. An operator is free to record conditions in records that are not subject to MSHA inspection mandates.

Three other important notes related to workplace examinations:

• • The Program Policy Letter states that all workplace examination records must be kept for 12 months. In other words, they may not be disposed of, as previously allowed, after a complete inspection.

• Inspectors frequently issue “unwarrantable failure” charges alleging that workplace examinations were not properly made. They base this on the fact that they themselves detected many violations that they say should have been caught and corrected if examinations were properly made.
• Even more troubling is the fact that there is a trend on the part of inspectors to allege that examiners—even if they are hourly employees––are “agents” of the operator. Although it does not appear so far that MSHA is preparing to impose individual liability on them as agents of the operator, the agency is using the allegation that they are agents to justify issuing unwarrantable failure citations or orders against their employers for allegedly deficient workplace exams. To date, the Commission has not held that hourly employees making workplace examinations in metal/nonmetal mines are agents.