Court Affirms That Kaiser Subject to MSHA

Ruling rejects Kaiser Aluminum's effort to keep the Mine Safety\r\nand Health Administration from investigating accident.

A three-member panel for the U.S. Court of Appeals for the 5th Circuit unanimously rejected Kaiser Aluminum''s attempt to defeat jurisdiction of the Mine Safety and Health Administration (MSHA) over Kaiser''s Gramercy, La., alumina facility.

The legal challenge grew out of a July 5, l999, explosion at the Gramercy facility that injured 29 workers, six of them severely. When MSHA investigators subpoenaed Kaiser documents, the company responded by moving to quash the subpoenas and challenged MSHA''s authority to act.

Earlier this year, a district court in New Orleans rejected Kaiser''s attempt, ruling that the Gramercy facility "milled" minerals and was subject to MSHA enforcement authority. Last week''s circuit court ruling affirms that judgment.

At the time of the blast, Kaiser had locked out its work force, some 400 members of the United Steelworkers of America (USWA), and replaced them with temporary workers. The labor dispute between Kaiser and the Steelworkers is in its 21st month.

The court upheld MSHA''s jurisdiction to investigate the accident, subpoena Kaiser employees and review internal documents prepared before the blast by the company''s Overpressure Protection Committee. Kaiser argued that certain subpoenaed documents were privileged information. The documents must be produced and may provide answers regarding pre-accident safety practices at Kaiser.

In the underlying enforcement case, MSHA recently levied a $533,000 fine against Kaiser, the largest in the agency''s history in any case involving a nonfatal accident. The agency issued 21 violations against Kaiser, including operating the plant beyond its limits, lack of worker training and "management''s failure to identify hazardous conditions and unsafe practices."

As reported earlier this year in the Wall Street Journal, MSHA has been conducting a special investigation of the Gramercy blast that could lead to a referral of the case to the U.S. Justice Department for a criminal investigation.

Kaiser suffered a second legal defeat June 12 when MSHA Administrative Law Judge Gary Melick denied its attempt to prevent the Steelworkers from intervening in the contested Gramercy citation cases.

David Foster, the Steelworkers'' lead negotiator in the Kaiser lockout, said, "The courts are making it very clear that Kaiser needs to accept responsibility for its actions. Instead of always trying to tie matters up in protracted court proceedings, Kaiser needs to get on the road to recovery by bringing Steelworkers back to work."

USWA members struck Kaiser Aluminum in response to the company''s substandard contract offer Sept. 30, 1998, and offered to return to work Jan. 13, 1999. On Jan. 14, 1999, the company locked out more than 2,900 USWA members at its plants in Gramercy, as well as in Newark, Ohio, and Tacoma and Spokane, Wash.

by Todd Nighswonger

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