Coal Miner's Kafkaesque Case

Kentucky Officials File Bizarre Complaint Against Whistleblower Represented by Tony Oppegard, '80

Lexington Herald-Leader - Lexington, Kentucky - December 17, 2012

Kentucky Officials Seek to Punish Miner Who Reported Safety Violations

by Bill Estep

Mackie Bailey, 41, of Harlan County faces discipline over mine-safety violation even though he reported the violation to state authorities. 12/11/2012 - photo by Bill Estep

 HARLAN — To federal prosecutors, Mackie Bailey is a witness who provided information about dangerous practices at an underground coal mine in Harlan County where a man was crushed to death in June 2011. The company and three supervisors pleaded guilty in federal court.To state authorities, Bailey is a miner who broke the rules. The Kentucky Office of Mine Safety and Licensing filed a complaint against him for taking part in the dangerous activities he reported to state and federal regulators. To Bailey and his attorney, that's an injustice, not just because supervisors ordered Bailey to do unsafe work, but because his information helped convict the people responsible.

"They're trying to punish the whistle-blower," said Bailey's attorney, Tony Oppegard, who previously worked as a federal mine-safety official and as a prosecutor in the state mine-safety agency.

Kentucky regulators are asking the state Mine Safety Review Commission to put Bailey's underground miner certificate on probation for a year. That wouldn't stop him from continuing to work, but penalties for subsequent offenses are higher under state mining law. The probation could hurt Bailey if he faces another complaint, Oppegard said.

Oppegard asked the state in October to drop the complaint against Bailey, but the Office of Mine Safety and Licensing has not responded, Oppegard said. Bailey has a hearing scheduled before the mine-safety commission in February.

State officials won't comment on why Bailey was charged because the case is pending, said Dick Brown, spokesman for the agency that includes the Office of Mine Safety and Licensing.

Bailey, 41, a father of four with more than 20 years' experience at surface and underground coal mines, worked in the first half of 2011 at the Manalapan Mining Co.'s P-1 mine near Pathfork.

Bailey said he saw problems as soon as he started at the small mine — including safeguards being "jumped out," or bypassed with a wire to keep them from shutting down equipment experiencing electrical problems. The altered safeguards make it less likely that coal production will be interrupted, but it increases the danger of someone being electrocuted, he said. Bailey said he did not report the problems to regulators at first for fear of losing his job. With $1,200 a month in child-support payments and other bills, the risk was too great, he said.

Coal operators who want to cut corners don't hesitate to hold the threat of losing a job over a miner's head, he said. "They remind you every day there's a hundred men standing in line for your job," Bailey said.

Oppegard, who represents miners and widows in cases against coal companies, said many miners in similar situations don't report problems, trading away safety for a paycheck. "Your choice is either refuse and get fired or do something you know is dangerous," Oppegard said.

Bailey operated a machine at the P-1 mine that drove bolts into the mine roof to keep it from falling. The machine has a large bar that the operator is supposed to plant against the roof of the mine, to support it while installing the permanent bolts. As employees dug back into the mountain in June 2011, they hit a spot where the roof pitched up so high that the temporary support bar wouldn't reach it, according to Bailey and federal court records. That meant the miners using the machine were exposed to unsupported sections of rock, a serious violation of federal and state law. "I've never seen anything so dangerous in my life," Bailey said.

Bailey, who worked second shift, said he told supervisors about the problem but was told to keep working. Mine bosses wanted workers to get past the dangerous spot so they could reach more coal on the other side before inspectors spotted the problem, he said. The problem continued for more than two weeks, according to a court document.

"They knew every day they were risking miners' lives," Oppegard said of company officials.

Manalapan employees at the surface of the mine would call to warn those underground when inspectors were on the way in, Bailey said.  At one point, a supervisor told him to put the bolting machine in a different section of the mine and say it was out of service, so inspectors could not check it, Bailey said.

By late June, Bailey said, he'd had enough. There was a chunk of rock hanging down from the roof, and he refused to bolt the area out of fear he could get killed, he said. Bryant Massingale, second-shift foreman, threatened to fire him, Bailey said. "He said, 'You'll bolt it or go to the house,'" Bailey said.

Attorneys for Manalapan and three supervisors said in a court document that there was no evidence that a miner there had ever been fired for refusing a job he considered dangerous.

Massingale had another supervisor look at the spot; that supervisor said he was right not to install bolts there, Bailey said. Bailey finished his shift on other duties, but he said he expected to be fired when he went to work the next day, June 29. Instead, a security guard told him the mine was shut down because someone had been killed on the first shift.

David Partin, 49, of Pineville, a miner with 16 years' experience, was crushed when a section of rock nearly seven feet long and three feet wide collapsed on him, according to a federal investigation.

Bailey called Oppegard for help that day. Oppegard arranged for Bailey to talk to Tracy Stumbo, chief accident investigator for the state mine-safety agency. State inspectors verified problems Bailey had described; federal authorities ultimately adopted the case, and a grand jury indicted Manalapan and three supervisors in February for violating several safety laws.

Massingale pleaded guilty to signing reports that were false because they did not note hazardous conditions in the mine and to failing to correct dangerous conditions in the mine wall. Joseph Miniard, the mine superintendent, pleaded guilty to co-signing false reports and to having miners work on machines that did not have protective canopies. Jefferson Davis, the operations manager, and the company pleaded guilty to having miners work without protective canopies.

The company and the three men are to be sentenced next year.

It's likely that inspectors wouldn't have found the problems cited in the indictment if Bailey hadn't come forward, Oppegard said. Inspectors had been in the mine earlier and had not cited the violations, he said.

The P-1 mine closed after the rock fall, and Bailey went to another Manalapan mine, but the company laid him and other miners off not long after. Bailey lost his home and had to move in with one of his children for a time before finding a job at another mine.

In July 2012, the state filed administrative complaints against Bailey and several other men who had worked at the P-1 mine, including the supervisors indicted in federal court. The charge against Bailey is that he worked under an unsupported section of the mine roof — a violation that he reported.

"I don't see the justice in it," Bailey said. 
 

Mackie Bailey is shown operating a roof-bolting machine at the Manalapan Mining Co.’s P-1 mine in Harlan County in 2011. The top arm of the machine is supposed to reach the roof.

PHOTO COURTESY OF MACKIE BAILEY