Coal Miner's Kafkaesque Case
Tuesday, December 18, 2012
Posted by: Joe Libertelli
Kentucky Officials File Bizarre Complaint Against Whistleblower Represented by Tony Oppegard, '80
Lexington Herald-Leader - Lexington, Kentucky - December
Kentucky Officials Seek to
Punish Miner Who Reported Safety Violations
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
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
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
The company and the three men are to be sentenced next
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
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