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Introduction to Special Investigations Handbook PH05-I-4. Judy R. Peters peters.judy@dol.gov 304-256-3469. Chapter 1. The Technical Compliance and Investigation Office is responsible for overall administration of the special investigations program. Chapter 1.

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introduction to special investigations handbook ph05 i 4

Introduction to Special InvestigationsHandbook PH05-I-4

Judy R. Peters

peters.judy@dol.gov

304-256-3469

chapter 1
Chapter 1
  • The Technical Compliance and Investigation Office is responsible for overall administration of the special investigations program.
chapter 11
Chapter 1
  • District manager is responsible for managing his/her special investigations program
  • The SSI reports directly to the District Manager and is responsible for the daily management of the special investigation program.
chapter 12
Chapter 1
  • Special Investigators report to the SSI when conducting investigations
    • DO NOT CONDUCT INTERNAL INVESTIGATIONS against MSHA employees
    • DO NOT carry weapons
    • DO NOT conduct physical or technical surveilance
chapter 13
Chapter 1
  • SI Credentials
    • Authorized representative or Right of Entry
    • Complete formal training
    • On-the-job training
  • Credentials must be kept secure
  • Cannot be used for preferential treatment
  • CAN NOT carry other types of badges
chapter 14
Chapter 1
  • All investigations are confidential and must not be discussed with any unauthorized persons.
  • Requests for information in an SI case must be referred to TCIO
chapter 15
Chapter 1
  • FBI Requests for Assistance
    • May request background information
    • Laboratory examinations of evidence
    • Written requests for identification of fingerprints, etc, must be directed to the FBI headquarters
slide8
Chapter 2 Miners would have to play an active part in the enforcement of the Mine Act to have a truly effective S&H program.
protected class
Protected Class
  • Miners
  • Representative of Miners
  • Applicants for a mining position

are

Protected from retaliation for engaging in safety and health related activities

protected activity
Protected Activity
  • Identifying hazards

To them self or others

  • Asking for an MSHA inspection

103(g) complaint or Code-A-Phone

  • Refusing to engage in an unsafe or unhealthy act

Work Refusal

priority
Priority
  • Discrimination Complaints are given priority over all other special investigation cases
  • All available Special Investigation resources will be used to ensure the timely initiation and completion of the cases
    • Supervisory Special Investigator
    • Additional resources requested from TCIO
section 428 title iv
Section 428, Title IV
  • Prohibits discrimination against coal miners who are suffering from pneumoconiosis
    • Only underground coal miners
  • Administered by the Employment Standards Administration (ESA)
agreement with esa
Agreement with ESA
  • Memorandum of Understanding with ESA to provide additional locations to file complaints
    • ESA will accept Section 105(c) cases
    • MSHA will accept Black Lung cases
  • MSHA will conduct an investigation
    • If no violation of Section 105(c), will forward complete case file to ESA
    • If dual violation, will process & forward comlpete copy to ESA
agreement with nlrb
Agreement with NLRB
  • Memorandum of Understanding between MSHA and National Labor Relations Board (NLRB)
    • Violations of Mine Act
    • Violations of NLRB
  • Both TCIO and NLRB are responsible for coordination and consultation in handling discrimination complaints
processing complaints
Processing Complaints
  • Proper coordination and processing ensures efficient action
  • Filed with any MSHA or ESA office
  • At least one person in each field office and District office designated and trained to process complaints
  • At least one alternate
confidentiality
Confidentiality
  • Will be maintained by all MSHA employees involved in the process
  • Copies of complaints are NOT to be retained by the complaint processor
  • Only original complaint is to be maintained in the case file
  • Complaint and file maintained in accordance with Privacy Act
receiving complaints
Receiving Complaints
  • Complaint forms may be obtained from any MSHA or ESA office
  • Provided by Complaint Processor
    • Complaint form 2000-123 (Page 2-8)
    • Report Form 2000-124 (Page 2-11)
    • FMSHRC Rules of Procedure (2007 edition is not in Handbook)
    • Privacy Act Statement (page 2-16)
lost wages or employment
Lost Wages or Employment
  • Information on Backpay for Miners

(Page 2-17 thru 2-20)

  • Claimant Expense Search for Work, and Interim Earnings Report

(Page 2-21 thru 2-22)

  • MSHA enforcement personnel must have access to all material
in person
In person
  • Individuals who come into an MSHA office with questions concerning discrimination should be referred to:
    • Complaint processor
    • SSI
    • or Other designated person
  • Complaint processor
    • Should discuss general nature of complaint
    • Provide forms and other documents
    • Assist in filling out the forms
by telephone
By Telephone
  • Individuals should be referred to Complaint Processor
  • Complainant advised he/she may come to any MSHA office to file complaint and be assisted in preparing and filing a complaint
  • or, Packet mailed to complainant
    • A cover letter (Page 2-23)
    • Forms & documents listed on page 2-23
    • Certified Mail; return receipt
by mail
By Mail
  • Any signed letter or written document received in any MSHA office which alleges a discriminatory act will be treated as a complaint
    • Information will be transferred to Forms 2000-123 & 2000-124 and attached to the letter
    • Complainant will sign 2000-124 during investigation
    • Cover Letter (Page 2-23)
    • Forms & documents listed on page 2-23
form 2000 123
Form 2000-123
  • Capture pertinent information from complainant on specific items
  • Include as much information as possible
  • Advise complainant NOT to include names, addresses and phone numbers of potential witnesses
form 2000 124
Form 2000-124
  • Complainant summarizes the discriminatory action
    • Brief
    • Concise
  • One or two paragraphs
    • Remedy
  • Names, addresses, and phone numbers of potential witnesses are not to be included on this form
group complaints
Group Complaints
  • Filed on behalf of a group of miners
    • Complaint and remedy is the same for all
    • Only one case number assigned
    • One case file prepared
    • Signed by each person in the group
  • Separate case numbers and case files
    • Different or unique issues
    • Events occurred at different times
referrals to different districts
Referrals to Different Districts
  • Mine not in the district’s jurisdiction
    • Complaint Processor shall immediately notify the SSI
    • Arrangements can be made to forward the information to the appropriate office for processing
general investigative procedures
General Investigative Procedures
  • Investigation must address five elements of discrimination (Page 2-30)
    • Protected Class
    • Protected Activity
    • Adverse Action
    • Nexus
    • Operator’s Defense
protected class1
Protected Class
  • The complainant must provide evidence that he/she is employed as, or acting in the capacity of, one of the protected classes
    • Miners
    • Representative of Miners
    • Applicant for a mining position
protected activity1
Protected Activity
  • Filing or making a complaint of an alleged danger or safety or health violation
  • Instituting a proceeding under the Mine Act
  • Testifying or preparing to testify in any proceeding
  • Being the subject of medical evaluation and potential transfer under Section 101
protected activity cont d
Protected Activity, cont’d
  • Enforcement of the safety training provisions of Section 104(g) and Section 115
  • Refusing to work in unsafe or unhealthy conditions
  • Participating in an inspection in accordance with Section 103(a)
  • Exercising any statutory right afforded by the Mine Act
burden of proof
Burden of Proof
  • Complainant must provide evidence that he/she was involved in activity afforded by the Mine Act
  • Work Refusals - complainant must make a reasonable attempt to convey their safety and health concerns to management
  • Complainant must be reasonable in their belief that the condition or work assignment was unsafe or unhealthy
discriminatory acts
Discriminatory Acts
  • Complainant must provide proof that some type of adverse action occurred
  • Discharge, Termination, or Lay-off
  • Demotion
  • Refusal of employment
  • Reduction in benefits
    • Vacation
    • Bonus
    • Rates of pay
discriminatory acts cont d
Discriminatory Acts, Cont’d
  • Change of work hours
  • Interference with the exercise of the statutory right of miners
  • Subtle forms of interference
    • Promises of benefit
    • Threats of reprisal
  • Transfer to another position with loss of pay
nexus
Nexus
  • Investigator must show by a preponderance of evidence that there is a connection between the protected activity and adverse action
    • Perceived or real
  • Prima Facie Case:
    • Timeliness of events
    • Evidence of disparate treatment
    • Admission by discriminating official
    • Knowledge of miner’s protected activity
operator s defense
Operator’s Defense
  • Operator may rebut the Prima Facie Case or offer evidence to affirmatively defend their actions
    • The complainant was not involved in protected activity
    • No discriminatory act
    • The action taken was motivated by the complainant’s involvement in unprotected activity and adverse action would have been taken in any event
timeframes
Timeframes
  • All timeframes are initiated from the date complaint is received by an MSHA office
    • Fifteen Days - All investigations initiated
    • Forty-Five Days - All case files postmarked and mailed to TCIO (Case on the merits)
temporary reinstatements
Temporary Reinstatements
  • Seven days – notify TCIO and Solicitor
    • (Page 2-6)
    • Complainant’s name
    • Date filed
    • Date of TR request
    • Mine name and ID number
    • Name and phone number of SI
  • Twenty Days – refer case to Sol or decline
    • Page 2-33 or Pages 2-34 thru 2-35
  • Thirty Days – SOL file case with FMSHRC or decline
tr standard of proof
TR Standard of Proof
  • The investigation only has to establish there is a “reasonable cause to believe” that a discriminatory act occurred
  • The case was not frivolously brought as distinguished from the preponderance of evidence standard to prove the underlying discrimination
case on the merits
Case on the Merits
  • Sixty Days – TCIO complete review and refer to SOL or decline
  • Ninety Days – SOL must file a complaint with FMSHRC or decline
withdrawn complaints
Withdrawn Complaints
  • Complainant may withdraw complaint at any time
    • Submit request in writing
    • Discontinuance of Discrimination Complaint (Page 2-26)
      • Witnessed by an SI
      • Notarized
  • Verified by SI if submitted by mail
withhdrawn complaints cont d
Withhdrawn Complaints, cont’d
  • Understanding, Settlement, or Agreement
    • Letter to complainant
    • Copy to respondents
    • Prepared by TCIO
    • Mailed certified; return receipt
    • Page 2-27
  • Any other reason
    • Letter to complainant
    • Copy to respondent
    • Prepared by TCIO
    • Mailed Certified; return receipt
    • Page 2-28
hazardous conditions
Hazardous Conditions
  • Possible hazardous conditions identified during an investigation shall be reported and documented in a memorandum to the file
    • Referring conditions to the DM
    • Action taken by the SI
    • Action taken by the SSI
    • Action taken by enforcement personnel
msis codes
MSIS Codes
  • E12 – Knowing/willful Investigations (110)
  • E05 – Injunctive Actions or Other SI activities (108)
  • E11 – Discrimination Investigation
  • T03 – Legal Hearings/Documents
chapter 3
Chapter 3
  • Injunctive Actions and Assaults on Inspectors
    • Denial of Entry
    • Work in defiance of closure order
    • Attempts to harass inspectors
    • Attempts to delay inspections
defining injunctive actions
Defining Injunctive Actions
  • An order from a United States District Court commanding a person to do something (such as allow entry) or to refrain from doing something (work in defiance of an order of withdrawal).
  • Failure to comply with injunction is punishable by contempt of court.
preliminary injunction
Preliminary Injunction
  • Order issued after a hearing with both parties present pending a full hearing.
  • Temporary Restraining Order (TRO) may be issued by the court
    • Must demonstrate that irreparable damage or harm will occur to the party or case before the case can be fully argued in court.
permanent injunction
Permanent Injunction
  • Final order requiring the party to comply
  • Issued after a full hearing or trial
  • Can use the Preliminary Injunction hearing as basis for the permanent injunction
denials of entry
Denials of Entry
  • Inspection Supervisor immediately contact the DM and assist in preparation of inspector’s summary or events
  • District manager requests and coordinates injunctive actions
  • SSI will be responsible for advising and assisting the DM and establish a case file
  • Office of the Solicitor advises MSHA and files actions
assaults or harassment
Assaults or Harassment
  • Section 1114, Title 18, United States Code makes it a Federal crime to kill or attempt to kill an officer or employee of the US Government
  • Crime to forcibly assault, resist, oppose, impede, intimidate, or interfere with any person designated in Section 1114 of Title 18 while engaged in or on account of the performance of their duties.
if assaulted or harassed
If Assaulted or Harassed:
  • Leave the scene
  • Advise parties that it is a Federal crime to assault or harass an inspector
  • Contact supervisor immediately
  • Personnel should not return to the mine until instructed to do so by the DM
chapter 4
Chapter 4
  • Under Sections 110(c) MSHA is authorized to propose assessments of civil penalties against an agent of a corporation (or LLC) for knowingly violating a mandatory safety or health standard
  • MSHA may also pursue criminal proceedings against an operator who willfully violates a mandatory safety or health standard
knowingly
Knowingly
  • Does not have any meaning of bad faith or evil purpose or criminal intent. . . A person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence
willful
Willful
  • The failure to comply with a mandatory health or safety standard is Willful if done knowingly and purposely be a mine operator who, having a free will and choice, either intentionally disobeys the standard or recklessly disregards its requirements. . . The closing of the eyes to or deliberate indifference toward the requirements . . .
section 110 investigations
Section 110 Investigations
  • Initiated at the discretion of the DM
    • After a mine accident
    • Receipt of complains alleging violations of 110(e), 110(f), or 110(h)
    • Review of citations or orders
review of citations orders
Review of Citations & Orders
  • 104(a) citations that contributed to issuance of a 107(a) order
  • 104(d) S&S citations or orders
  • 104(g) orders evaluated as high or Reckless disregard
  • Citations issued for working in the face of an order
mandatory health or safety standard
Mandatory Health or Safety Standard
  • 30 CFR parts:

46 57 72

47 58 75

48 62 77

49 70 90

50.10 71

56

timeframes1
Timeframes
  • DM issues a determination within 30 days whether or not to conduct an investigation
  • Investigation must commence within 60 days
  • District makes recommendation for action within 150 days
  • Section 110 (c) cases referred to Office of Assessments within 220 days
  • Criminal cases referred to DOJ within 240 days
chapter 5
Chapter 5
  • The spoken word is potentially the greatest of all sources of investigative evidence
  • No investigation is complete until every potential witness is contacted
  • Proficiency in interviewing is of the utmost importance
preparing for the interview
Preparing for the Interview
  • Location
    • Statements taken seperately
    • Control physical conditions
    • Privacy – homes, office, car, public place
  • Selection of Interviewees
    • All persons having information relevant to the case
    • Each person will be offered an opportunity to provide a confidential statement
preparing for the interview1
Preparing for the Interview
  • If an interviewee does not need to be interviewed or refuses to be interviewed, the SI must document this in the case file
  • Representatives:
    • May also represent other parties in the case
    • No arguments
    • SI in control
    • Representatives may not reply for their client
planning the interview
Planning the interview
  • Establish rapport
  • Determine the direction of interview
  • Analyze violations
  • Analyze the issues
  • Analyze potential witness & their knowledge
  • Prepare an outline
  • Determine issues and topics of discussion
  • Establish order of interviews
conducting the interview
Conducting the Interview
  • Remain Professional
    • No threats or promises whatsoever
  • Questions are clear, communicative, and designed to elicit information
  • Each person interviewed separately
  • Present credentials
pledges of confidentiality
Pledges of Confidentiality
  • Persons interviewed in private
  • NOT OFFERED if multiple persons are present
  • Not offered to management personnel unless they request to provide a confidential statement in private
types of questions
Types of Questions
  • Who was involved?
  • What happened?
  • When did it happen?
  • Where did it happen?
  • How did it happen?
  • Why did it happen
  • Which one did it?
leading questions
Leading Questions
  • Should be avoided
  • A leading question directs or suggests the desired answer
    • Was John there?
    • Did you see it happen?
  • Used during summary or to clarify understanding
narrative questions
Narrative Questions
  • Phrased to elicit narrative answers
    • Tell me what you saw?
    • Describe the equipment?
    • Describe the location?
    • Who was there?
note taking
Note Taking
  • IMPORTANT!
    • Supports events
    • Memories fade
    • Issues become unclear
  • Contemporaneous Notes
    • Documentation of comments and observations (Daily reports, diaries, scrap paper, internal memoranda)
    • Must be retained
note taking1
Note Taking
  • Legal Support
    • Must maintain all relevant documents
  • Format
    • No official MSHA form
    • See page 5-14
note taking2
Note taking
  • Content
    • Depict exact words of the interviewe
    • Subject of notes
    • Date
    • Place
    • Signature of SI
    • Case Number
statements
Statements
  • Signed or electronically-recorded
    • Reviewed by interviewee for accuracy and signed
  • Use of Statements
    • Refresh memory
    • Impeach Interviewee
    • Evidence
statements1
Statements
  • Signatures of Interviewees
    • Interviewee afforded opportunity to review, correct, and sign statement
  • Types of Statements
    • Handwritten
    • Recorded
    • Memorandum of Interview (MOI)
interview outline
Interview Outline
  • Introduction
  • Prepare for Interview
    • Formulate Questions
      • Who, What, When, Where, Why, How
    • Review Documents
      • Accident or illness reports
      • Investigation reports
      • Violation history
      • Approved Plans
      • Mine records and maps
interview outline1
Interview Outline
  • Determine who to interview and where to conduct interviews
    • Complainant first in 105(c)
    • Inspector first in 110(c)
  • Arrange interviews in private
    • Do not leave messages with others
  • Schedule the Interview
interview
Interview
  • Establish Rapport
    • Introduce and identify yourself
    • Establish a relationship
    • Refrain from saying or doing anything which will cause the interviewee to be unwilling to talk
interview1
Interview
  • Question
    • Knowing what to ask and when to ask it is critical
    • Seek accurate information
    • Control conversation
    • Corroborate information
    • Identify inaccuracies
interview2
Interview
  • Non-Verbal Characteristics
    • Sweating
    • Color changes
    • Dry mouth
    • Pulse
    • Abnormal breathing
    • Nervousness
    • Evasive facial expressions
    • Embarrassment
    • Conflicting body gestures
interview3
Interview
  • Recorded statement
    • Written
      • Listen to story first without taking notes
      • Ask permission to take notes
    • Tape recorded
      • Obtain permission before and after interview
      • State date, time, location and all parties present
      • Voluntary statement and interviewee is aware it is being recorded
chapter 6
Chapter 6
  • We do not have authority to seize evidence that is not voluntarily released
  • Every piece of evidence that could have a connection with the case should be collected
  • All evidence must be identified and marked
nature and type of evidence
Nature and Type of Evidence
  • Real (Physical) Evidence
  • Documentary Evidence
  • Testimonial Evidence
    • Direct
    • Circumstantial
    • Cumulative
custody of evidence
Custody of Evidence
  • Identify
  • Joint Custody
  • Preservation of Evidence
  • Transmission of Evidence
  • Return of Evidence
evidence
Evidence
  • Certification of Documents
  • Handling of Grand Jury Information
    • Access
    • Use
    • Disposal