Slick Moves Keep Trump Republicans in Control of Mine Safety Board

William Althen, one of two Republican members of the Federal Mine Safety and Health Review Commission

These are troubling times at the Federal Mine Safety and Health Review Commission. That means troubling and dangerous times for the miners of this country as well.

For those who have never heard of it, the mine safety commission is an independent five-member agency that serves as the high court of the Mine Safety and Health Agency. Dave Jamieson at the Huffington Post explains why this small federal agency (76 employees and a $17 million budget) is essential to the safety of this country’s miners.

The mine safety commission “reviews legal disputes stemming from citations and fines against mining companies. But the commission plays a crucial role in ensuring workers come out of their mines alive by interpreting health and safety laws and seeing that federal inspectors enforce them. When the Mine Safety and Health Administration issues fines against a mine operator, the operator can appeal them to the commission. In general, a commission more aligned with operators than safety hawks will make it harder for inspectors to enforce the law aggressively.”

The Commission normally has five sitting commissioners that serve staggered five-year terms — three from the President’s party and two from the opposition. So we might assume that more than 16 months into a Democratic Administration and Democratically controlled Congress, Democratic commissioners with a more pro-miner slant than the previous administration would be in the majority.

Republicans still control the agency. The agency only has three Senate-confirmed commissioners, with a 2-1 GOP majority. The two Republican members, William Althen and Marco Rajkovich, are longtime lawyers for mining companies.

The lone Democrat is Art Traynor, a union lawyer formerly with the United Mine Workers of America. President Joe Biden designated Traynor the commission’s chair, but his two GOP counterparts can outvote him on contentious cases that set precedent.

Before joining the commission, the sitting Republican Commissioners represented coal companies in private legal practice. Currently, two Democratic nominees await Senate confirmation: former chair Mary Lu Jordan and Timothy “T.J” Baker, associate general counsel for the United Mine Workers of America. Confirmation of Jordan and Baker would bring the Commission under Democratic control.

And things may get even worse.  The reasons are somewhat complicated.

First Slick Trick

Normally, new commissioners are presented as a bipartisan package to the Senate. Empty Republican and Democratic seats are considered simultaneously, giving both parties an incentive to move the nominations forward.

But the Trump administration pulled a fast one.  When Art Traynor, the current chair, was nominated, instead of giving him a full 5-year term, the Trump administration stuck him into the seat that was to expire first, this coming August. Both Republican commissioners, on the other hand, are in seats that don’t expire until August 2024.  That leaves two open Democratic seats while the only occupied Democratic seat (Traynor) is about to expire.

So instead of the standard package confirmation deal consisting of both Democratic and Republican nominees, we have only Democratic nominees at least until late 2024. That’s a recipe for stalemate. It gives Senate Republicans every incentive to stall the nominations and muck up the process in any way they can. And, as I explain below, Republicans on the Commission and in the Senate are doing.

If Traynor’s seat expires before the two Democratic nominees awaiting a Senate vote are confirmed, Republicans will completely control the Commission. Even if Jordan and Baker are confirmed, the Commission could deadlock on 2-2 votes if Traynor (or a replacement Democratic nominee) is not promptly confirmed.

While Senate Democrats have the majority and can confirm nominees even without Republican support, doing so takes more valuable floor time, which Majority Leader Chuck Schumer may use for “more important” issues than the lives and safety of miners.

Undermining  Integrity

And, of course, all bets are off for future confirmations if Republicans take the Senate following the November mid-terms.

When Traynor arrived at the Commission in January 2021, many critical challenges faced him. Republican Commissioners and Senators are doing everything they can to stop Traynor from addressing those problems.
Marco Rajkovich, the previous chair and current commissioner, set up a group of mostly outside advisers called The Network, according to documents obtained by Politico. These included former clients of Rajkovich’s law firm. He enlisted their help in choosing a candidate for a high-level staff position and in an investigation of a former senior staffer.

Second Slick Trick

Traynor thought something smelled fishy. According to Politico, “Traynor, who expressed concern in his inspector general request this year that Rajkovich’s group ‘appears to have been comprised at least in part of top executives of coal and other mining concerns, some of whom were recent former clients of Rajkovich’s law firm.’”

He requested an Inspector General’s investigation, accusing Rajkovic of creating an “off-the-books investigatory unit” to vet candidates for the agency’s chief administrative law judge. He suggested that Rajkovich’s action appears to violate the Antideficiency Act.  It prohibits federal employees from accepting voluntary services for government work.

The mine safety commission has no Inspector General at this time, so it’s unclear where this request for an investigation goes.

Tom Stock, a retired long-time commission staffer who once served as the agency’s general counsel supports Traynor’s interpretation.

Speaking from his experience as a former ethics official, Stock said his opinion is that such reliance on The Network would have “violat[ed] ethics rules of impartiality, appearances, and propriety in an amazing way.”  “You know, it’s just astounding that he would have done that,” Stock said in an interview with Politico. “And to have done it in writing!”

Rajkovich denied engaging in any misconduct.

Who Runs the Commission?

Traynor and the Republican commissioners are also battling over who manages day-to-day procedures: Traynor as chair or the Republican majority.

Traynor announced earlier that he had lost faith in the Commission’s General Counsel, Michael McCord. Traynor alleged that McCord worked with Rajkovich to assign attorneys to a case that Rajkovic had recused himself from because he and his former law firm had been involved. Traynor took away McCord’s authority to assign attorneys to cases sent to the commission for review.

In late 2021, Traynor identified evidence of “potential federal crimes,” including millions of dollars in improper contracting and procurement.

Commissioners Rajkovich and Althen objected to Traynor’s actions. They voted to restore the traditional procedure where the General Counsel assigned attorneys. Traynor accepted that reversal. However,  Tony Oppegard, a mine safety attorney in Lexington, Ky., who has practiced before the commission for decades, backed Traynor’s actions.

“That’s crazy,” Oppegard said. “The chairman is the guy who runs the commission. It’s always been that way.”

Fake Office Trick

In February, Althen and Rajkovich, wrote to the Senate Health, Education, Labor, and Pensions Committee accusing Traynor of breaking established procedures by taking from McCord responsibility to assign cases to staff attorneys.

Sen. Richard Burr of North Carolina, the top Republican on the committee, and Sen. Mike Braun, Republican of Indiana, then called on President Biden to fire Traynor.

In a somewhat amusing indication of how far the Republicans will go, Althen and Rajkovic wrote the Senators on newly created stationery that purports to have come from an “Office of Commissioners,” which doesn’t exist.

In March, Chairman Traynor put McCord and Executive Director Lisa Boyd on administrative investigative leave due to the allegations of potential federal crimes and their relationship with The Network. Commissioner Althen was not pleased.  According to Politico, “Althen accused Traynor of intimidating and micromanaging staffers in the commission’s Office of General Counsel, decrying the chair as ‘an asshole, excuse my language. But he has alienated everybody on the legal team.’”

Undermining Miner Protections

All of this might be seen as nothing more than an inside-the-beltway, “Real Bureaucrats of Washington” melodrama if it didn’t threaten the safety and rights of American miners. But unfortunately for the miners going down into the pits every day, the turmoil at the mine safety commission and the decisions the Republican majority continues to make 16 months into the Biden administration carry real-life-or-death implications. Three cases currently or recently before the Commission illustrate these points.

The most upsetting case addresses the temporary reinstatement of a miner who alleged discriminatory dismissal for engaging in safety activity in violation of federal law.

When a miner is fired for engaging in a protected safety activity, Section 105(c)(2) of the Mine Safety and Health Act allows the miner to be “temporarily reinstated” as long as the anti-discrimination case was not “frivolous.”  All the miner has to prove a reasonable claim for reinstatement. Then during the months or years while the merits of the underlying case go through the legal process, the miner continues working.

Contrast this with the Occupational Safety and Health Act. It contains no provision for temporary reinstatement. Workers who are unjustly fired for engaging in protected health and safety activities must often wait years — without pay — until their case is resolved.

In Cook v. Rockwell Mining LLC, however, the mine safety commission’s Republican majority effectively changed the law to require a full evidentiary hearing with a higher burden of proof to ensure that the miner’s claim was not frivolous.   This lengthy process essentially defeats the purpose of temporary reinstatement, which is intended to get miners back to work as early as possible while encouraging miners to point out safety concerns to reduce injury and death.

Reckless and Flagrant

In another case, Northshore Mining, the Republican majority is undermining a provision of the MINER Act, passed after the 2006 Sago mining disaster in which 12 miners died. Wilbur Ross, who became Trump’s Commerce secretary, owned the mine. It had 96 “substantial” safety violations in 2005,

The MINER Act sets higher penalties for “reckless flagrant violations.”

The definition of “flagrant” concerns whether a reasonable person would recognize the risk of serious harm by not fixing a problem. The Republican commissioners want to require “conscious or deliberate expectation” or operator intent to cause harm to justify a reckless flagrant violation. That’s an almost impossible standard to meet.

That definition would be more appropriate to proving homicide, not a mine safety act violation.

In the Consol case, an Administrative Law Judge and the commission had decided a case based on a number of facts.  The Republican majority substituted their own facts and overturned the ALJ’s decision.  Again, an unprecedented action.

So, 16 months into the Biden administration, we still have a Republican majority on the mi9ne safety commission, a Republican majority that threatens to obstinately continue through the entire Biden administration due to unprecedented manipulation of the appointment process by the Trump administration.  That Republican majority — not unlike the Supreme Court — is overthrowing decades of precedent, thereby threatening the safety, health, and lives of the miners of this country.

As we saw so often during the Trump administration, we see a Republican majority that seems to believe that ethics — and the law – don’t apply to them.

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