COMMITTEE SUBSTITUTE

FOR

H. B. 2888

(By Hamilton, Barker, M. Poling,

           Mahan, Marshall, Moore, D. Poling, Caputo,

               Longstreth, Ellem and Savilla)

      (Originating in the House Committee on the Judiciary)

[February 24, 2011]

A BILL to amend and reenact §22A-1-22 of the Code of West Virginia, 1931, as amended, relating to the strengthening of protections for whistleblowers of unsafe working conditions in mine; directing the Office of Miners’ Health, Safety and Training to conduct a study and report to the Legislature.

Be it enacted by the Legislature of West Virginia:

    That §22A-1-22 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.

§22A-1-22. Discrimination.

§22A-1-22. Discrimination.

    (a) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that the person believes or knows that such miner or representative (1) has notified the director, his or her authorized representative, or an operator, directly or indirectly, of any alleged violation or danger, (2) has filed, instituted or caused to be filed or instituted any proceeding under this law, (3) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against or caused to be discriminated against because a miner or representative has done (1), (2) or (3) above.

    (b) Any miner or a representative of miners who believes that he or she has been discharged or otherwise discriminated against, or any miner who has not been compensated by an operator for lost time due to the posting of a withdrawal order, may, within thirty days after such violation occurs, apply to the appeals board for a review of such alleged discharge, discrimination or failure to compensate. A copy of the application shall be sent to such person who shall be the respondent. Upon receipt of such application, the appeals board shall cause such investigation to be made as it deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to enable the parties to present information relating to such violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Mailing of the notice of hearing to the charged party at the party's last address of record as reflected in the records of the office is adequate notice to the charged party. Such notice shall be by certified mail, return receipt requested. Any such hearing shall be of record. Upon receiving the report of such investigation, the board shall make findings of fact. If it finds that such violation did occur, it shall issue a decision within forty-five days, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the board deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his or her former position with back pay, and also pay compensation for the idle time as a result of a withdrawal order. If it finds that there was no such violation, it shall issue an order denying the application. Such order shall incorporate the board's finding therein. If the proceedings under this section relative to discharge are not completed within forty-five days of the date of discharge due to delay caused by the operator, the miner shall be automatically reinstated until the final determination. If such proceedings are not completed within forty-five days of the date of discharge due to delay caused by the board, then the board may, at its option, reinstate the miner until the final determination. If such proceedings are not completed within forty-five days of the date of discharge due to delay caused by the miner the board shall not reinstate the miner until the final determination.

    (c) Whenever an order is issued under this section, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses including the attorney's fees as determined by the board to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation.

    (c) The Office of Miners’ Health, Safety and Training is directed to conduct a study of the need to expand protections for whistleblowers and other miners who refuse to work in situations they perceive as unsafe in underground mines. The office shall study the benefits and appropriateness of requiring additional protections that will encourage miners to withdrawal from and report unsafe working conditions. The Office shall investigate whether any pattern of retribution exists against these persons, and if so to make recommendations to the to the Legislature regarding implementing additional protections. The Office shall report to the Legislature’s Joint Committee on Government and Finance by December 31, 2011 with recommendations regarding whether it is appropriate to implement any additional protections.