.
PONTIKI COAL CORPORATION
KENT 94-1274-D
February 6, 1995
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 6, 1995
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-1274-D
ON BEHALF OF CHARLES H. : PIKE CD 94-16
DIXON, BERNARD EVANS, :
RICHARD GLOVER, EDGAR OLDHAM, :
MARK MARCH, AND ELEVEN (11) :
UNNAMED EMPLOYEES OF PONTIKI :
COAL CORPORATION, :
Complainant :
v. : Pontiki No. 2 Mine
: Mine ID 15-09571
PONTIKI COAL CORPORATION, :
Respondent :
ORDER GRANTING PARTIAL DISMISSAL
Before: Judge Melick
This proceeding is before me based upon the Respondent's
Motion to Dismiss raising the following issues: (1) the Commission
lacks jurisdiction in this case over those persons who have not
filed complaints under Section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977, 3- U.S.C. � 801 et. seq., the "Act" and in
cases whether such complaints have merit (under Sections 105(c)(2)
and (3) of the Act); (2) that the complaint of Charles H. Dixon
must also be dismissed for lack of jurisdiction because he was not
a member of a class of persons protected under Section 105(c) when
the alleged discrimination occurred; (3) that the complaint is
defective under Commission Rule 44(a), 29 C.F.R. � 2700.44(a); and
(4) that the complaint herein is untimely.[1]
The undisputed record shows that Charles H. Dixon, alone,
filed a complaint of discrimination pursuant to section 105(c)(2)
of the Act[2] on April 26, 1994, alleging the following
discriminatory actions:
Pontiki Coal Corporation, through and by management
personnel, advised miners that they could not choose a
representative of miners who was a representative of the
United Mine Workers of America. The miners were further
advised that if they chose a UMWA representative that
Pontiki would be forced to spend thousands of dollars to
defend their position and that only employees of Pontiki
will be recognized as a representative of miners.
Management for Pontiki, on or about March 11, 1994, further
implied that the miners' jobs would be less secure as a
result of the company having to spend thousands of dollars
to defend their position and that if the company was not
forced to spend this money on lawyers that it would mean
more money for them.
Management for Pontiki on April 15, 1994, properly received
by certified mail, pursuant to 30 C.F.R. [sic] part 40 a
certificate of representation of which they have failed to
properly recognize.
In a letter to Mr. Dixon dated September 15, 1994 the
Secretary advised Dixon in relevant part as follows:
Your complaint of discrimination, under section 105(c) of the
Federal Mine Safety and Health Act, has been
investigated and the results carefully considered.
Based on the results of this investigation, the Mine Safety
and Health Administration (MSHA) has determined that, in its
opinion, a violation of section 105(c) of the Act has
occurred and that you have been discriminated against. MSHA,
through the Office of the Solicitor, has prepared and filed a
complaint on your behalf, requesting that Federal Mine Safety
and Health Review Commission order relief which would remedy
the discrimination.
Thereafter, September 6, 1994, presumably under section
105(c)(2) of the Act, the Secretary filed a complaint of
discrimination with this Commission alleging in part as follows:
5. The following non-employees of Pontiki Coal Corporation
have been appointed as duly authorized representatives of
miners for the Pontiki No. 2 mine all within the meaning of
section 105(c) of the Act [30 U.S.C. 815(c)]: Charles Dixon,
Bernard Evans, Don Riley, Charles Johnson, Richard Glover,
Edgar Oldham, and Mark March. Said representatives of miners
were appointed by eleven employees of Pontiki Coal Corporation
working at the Pontiki No. 2 mine.
6. From March 1994 to present, Pontiki Coal Corporation has
discriminated against the non-employee representatives of
miners and the eleven Pontiki Coal Corporation employees who
appointed said non-employee miners' representatives. The acts
of discrimination are in violation of section 105(c) of the
Act [30 U.S.C. 815(c). The acts of discrimination engaged in
by Pontiki Coal Corporation include but are not limited to the
following:
(a) refusal to recognize the non-employees as representatives
of miners; (b) posting the appointment notice with the names
of the non-employees representatives of miners on the mine
bulletin board with the admonishment that Pontiki Coal
Corporation would not recognize or honor the appointment of
non-employees as miners' representatives; and (c) holding
meetings with hourly paid employees, to include the eleven
employees described above, and threatening said hourly paid
employees with job termination by closing the mine if said
employees continued their efforts to appoint non-employees as
representatives of miners.[3]
In its motion to dismiss, Pontiki argues, inter alia, that the
Secretary cannot bring a complaint on behalf of non-complaining
individuals. Indeed, under the plain language of that section, it
is only that particular "miner or applicant for employment of
representative of miners" who believes that he has been
discriminated against who is authorized and has standing to file a
complaint with the Secretary alleging such discrimination against
him.
The initiating complaint filed with the Secretary in this case
was clearly identified as the complaint of Charles H. Dixon. He is
the only listed named complainant and only Dixon's signature
appears on the complaint. Moreover, the Secretary's findings
pursuant to section 105(c)(2) evidenced by its letter to Mr. Dixon
dated September 15, 1994 specifically refers to Mr. Dixon's
complaint as "your complaint of discrimination" and refers to the
findings that "you have been discriminated against". There is,
accordingly, no legal basis for the Secretary's expanded complaint
filed with this Commission alleging discrimination against the
named complainant herein, Charles Dixon, but also as against
persons other than Charles Dixon. There being no statutory basis
for the inclusion of the 17 additional persons in the complaint,
this Commission has no jurisdiction to act on the expanded
complaint. The complaint herein must accordingly be dismissed with
respect to all purported Complainants except Charles H. Dixon.[4]
Moreover, to the extyend that the Secretary's complaint also
contains allegations naming additional "complainants" and raises
additional issued thereby deviating from the original complaint
filed by Dixon with the Secretary on April 26, 1994 those deviating
and additional allegations must also be stricken as beyond the
scope of this Commission's jurisdiction. Hatfield versus Colquest
Energy, Inc., 13 FMSHRC 544 (1991).
With respect to the one remaining complainant, i.e.
Charles H. Dixon, Pontiki also argues that he was not a person
protected under section 105(c) because he was not an applicant for
employment, a miner or even a miner's representative when the
alleged discrimination occurred. It is undisputed in this case
that complainant Dixon has not, in fact, been either a "miner" or
an "applicant for employment" within the meaning of the Aact and
that he did not, until April 15, 1994 notify Pontiki of this claim
to be a "representative of miners" at the subject mine when Pontiki
received by certified mail a "certificate of representation"
purportedly under 30 C.F.R. Part 40. It is clear, therefore, that
before April 15, 1994,Mr. Dixon was not a miner, applicant for
employment, or representative of miners within the scope of section
105(c)(2).
Under the circumstances, I am without jurisdiction to consider
any alleged acts of discrimination occurring before April 15, 1994.
In examining the specific issues set forth in Mr. Dixon's April 26,
1994 complaint to the Secretary it is clear, therefore, that only
that part of Dixon's Complaint may be considered which asserts that
"management for Pontiki on April 15, 1994 properly received by
certified mail pursuant to 30 C.F.R. [sic] Part 40 a certificate of
representation of which they have failed to properly recognize."
Pontiki further argues that Dixon was not a "representative of
miners" and is still not a "representative of miners" because of
his failure to comply with Part 40 of the Secretary's regulations.
In this regard Pontiki notes that 30 C.F.R. section 40.3(a)
provides for mandatory requirements for certification, requiring
that the certificate provide the title of the official or position,
who is to serves as representative and his or her telephone number.
The regulation specifically provides as follows:
Section 40.3(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to the operators of the affected mines.
This information shall be kept current:
(1) The name, address and telephone number of the
representative of miners. If the representative is an
organization, the name, address, and telephone number of the
organization and the title of the official or position, who is
to serve as the representative and his or her telephone
number.
The Secretary responds by claiming the allegation is
"hypertechnical" but also maintains that the required information
has been provided. There appears, therefore, to be a factual
dispute on the issued of compliance with the certification
requirements and that issue cannot be resolved without evidentiary
hearings.
The Respondent further maintains that the Complaint should be
dismissed as untimely. It is undisputed that Dixon's initial
Complaint was received by the Secretary on April 26, 1994. The
Complaint was not filed with this Commission until September 2,
1994, some 129 days later. The Secretary's written determination
that Dixon had been discriminated against, which also states that a
complaint had already been filed at the Commission on his behalf,
was dated September 15, 1995. This filing delay exceeded the time
limits set forth in section 105(c)(3) of the Act. However, as this
time limit is not jurisdictional, a hearing will also be needed for
the parties to present evidence on the issues of whether such delay
was justified and whether the operator has been prejudiced by such
delay. Oral argument will also be held at such hearings on the
issued of whether the Secretary has complied with Commission Rule
44(a) and, if not, what sanctions should be imposed.
ORDER
The Complaint herein, insofar as it purports to name as
individual Complainants persons other than Charles H. Dixon, is
dismissed. The Complaint of Charles H. Dixon is further limited as
provided in this Order.
Hearings will be scheduled in the near future on the issues
presented in the motions to dismiss which have not been decided
herein.
Gary Melick
Administrative Law Judge
Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washington, D.C. 20004
/jf
**FOOTNOTES**
[1]:The Secretary's Motion for Summary Decision on the merits
filed January 13, 1995, is premature as the Motions to Dismiss may
be dispositive on preliminary issues. The Secretary's Motion also
appears to be based upon facts still at issue. See Commission Rle
67, 20 C.F.R. � 2700.67.
[2]:Section 105(c)(2) provides, in part, as follows:
Any miner or applicant for employment or representative
of miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation
of this subsection may, within 60 days after such violation occurs,
file a complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall cause such
investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary determines
that the provisions of the subsection have been violated, he shall
immediately file a complaint with the Commission, with service upon
the alleged violator and the miner, applicant for employment, or
representative of miners alleging such discrimination or
interference and propose an order granting appropriate relief.
[3]:On October 2, 1994, the Secretary filed an amended
complaint adding a specific request for assessment of a civil
penalty of $1,500 for the alleged violation.
[4]:The case caption in future pleadings should accordingly be
modified to reflect the deletion of these 17 persons as
Complainants herein.