Bad Ideas

Every day OSHA sends it's staff an e-mail with a list of S&H/OSHA related links to articles gathered from the Internet. One of the article today really got my attention: UMW, Upper Big Branch victims' relatives sue MSHA.

It's not that MSHA is being sued, that happens all the time to both MSHA and OSHA, it's just part of the job. The part that makes me uncomfortable is that UMW is asking a judge allow union and employee representatives to be included in all interviews related to the investigation. I absolutely understand the desire to be included and to want to hear the unvarnished version from both employee and employer witnesses, but I don't think UMW realizes how potentially damaging this might be to the investigation.

Interviews, especially interviews of witnesses after a fatality, can be tricky. There's always a lot of emotion involved, fear, anger, shock, depression, to name just a few. Wading through that emotion may take patience, or it may take sympathy, or it may take a certain firmness, it all depends on the situation.

The most productive interviews are usually those where the investigator can get past the emotions and establish a certain level of rapport. I'm not suggesting that the interviewee would tell us their deepest secrets, but if you can show them that you aren't after them personally, that you're just trying to put the pieces together and that they can be part of that process, you can usually get your answers.

When there is a third person in the room, however, establishing the rapport is very difficult, and when that third person is viewed as the enemy, it's impossible. That's why under the OSH Act we are allowed to interview employees away from company representation. Employees are entitled to have a representative observe the interview, but the employer can not put a representative in the room during an employee interview. This leads to some interesting interviews because the employer can refuse to allow us to interview the employees on their property. I have interviewed employees in restaurants, hotel rooms, parks and even bars. I have also had situations where the employee representative has been helpful and instances where the rep has cause problems (typically because they answer the questions instead of letting the employee answer).

Some of these same issues arise when we interview employer reps, except that they know we're investigating what they did, so they naturally tend to be very defensive. Over coming that defensiveness is difficult, especially if they have a lawyer sitting in the room with them. Trying to over come that defensiveness would be impossible if employee reps were in the room, everyone knows everything they say will be used in the lawsuit.

I'm not opposed to difficult investigations, but when I do an investigation I want to be able to gather as many of the facts as I can, and employee representative being in the room when I interview management will do nothing but hinder that.