<DOC>
[DOCID: f:k97-316d.wais]
BOOGAR MAN MINING, INC.
September 10, 1997
KENT 97-316-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 10, 1997
SECRETARY OF LABOR, MSHA, : TEMPORARY REINSTATEMENT
on behalf of MICHAEL D. BROWN : PROCEEDING
Complainant, :
: Docket No. KENT 97-316-D
v. : BARB CD 97-11
: BARB CD 97-12
BOOGAR MAN MINING, INC., :
DEMA COAL COMPANY, INC., : Mine ID 15-02755
A & J FUELS, INC., BARRY MOORE, : Mine No. 1
and FREDDIE HUNTER, :
Respondents :
ORDER OF TEMPORARY REINSTATEMENT
This case is before me on an Application for Temporary
Reinstatement filed by the Secretary of Labor, acting through her
Mine Safety and Health Administration (MSHA), on behalf of
Michael D. Brown, pursuant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 815(c). The
application seeks reinstatement of Mr. Brown as an employee at
the No. 1 mine operated by Boogar Man Mining, Inc., or its
successor, A & J Fuels, Inc., in Knott County, Kentucky,[1]
pending a decision on the Complaint of Discrimination the
Secretary has filed against the Respondents on behalf of Brown.
For the reasons set forth below, I grant the application and
order Mr. Brown's temporary reinstatement.
Section 105(c)(2) of the Act, 30 U.S.C. � 815(c)(2),
provides, in pertinent part, that the Secretary shall investigate
a discrimination 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." The Commission has provided for this procedure
with Rule 45, 29 C.F.R. � 2700.45.
Rule 45(c), 29 C.F.R. � 2700.45(c), provides:
Within 10 days following receipt of the
Secretary's application for temporary reinstatement,
the person against whom the relief is sought shall
advise the Commission's Chief Administrative Law Judge
or his designee, and simultaneously notify the
Secretary, whether a hearing on the application is
requested. If no hearing is requested, the Judge
assigned to the matter shall review immediately the
Secretary's application and, if based on the contents
thereof the Judge determines that the miner's complaint
is not frivolously brought, he shall issue immediately
a written order of temporary reinstatement.
The Application for Temporary Reinstatement was served on
Freddie Hunter as Agent for Service of Boogar Man Mining; C.
Graham Martin, Esq., as Agent for Service for A & J Fuels; Carl
Ray Johnson as Agent for Service for Dema Coal Company; and Barry
Moore and Freddie Hunter, individually, on August 19, 1997, by
certified mail, return receipt requested. Return receipt cards
indicate that Carl Ray Johnson received the application on August
21 and Freddie Hunter received the application both personally
and as agent for service on August 22. Barry Moore refused to
accept the application by mail. On August 27, Maurice Mullins,
an MSHA Special Investigator, attempted to personally serve
Moore, but he again refused to accept service. Finally, on
September 8, the envelope addressed to C. Graham Martin, Esq.,
was returned to the Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, marked "unclaimed."
More than 10 days have elapsed from the date that those
Respondents who received the application received it. No request
for a hearing on the application has been made by any respondent.
Brown alleges in his application that he was discharged by
Boogar Mining on April 1, 1997, because he made safety complaints
to Moore and Hunter with regard to working under unsupported roof
and refusing to do so in the future. He also alleges that when
he returned to the mine on May 2, 1997, to pick up his final pay
check "he was threatened with bodily harm, threatened with a
knife, intimidated and harassed by both Barry Moore and Freddy
[sic] Hunter and never received his final paycheck." An
affidavit from Ronnie L. Brock, Supervisor of Special
Investigations for MSHA, states that his investigation verified
Moore's complaints.
Accordingly, I conclude that Moore's application has not
been frivolously brought and that he is entitled to be
temporarily reinstated.
ORDER
Michael D. Brown's Application for Temporary Reinstatement
is GRANTED. The Respondents, jointly or severally, are ORDERED
TO REINSTATE Mr. Brown to his former position, which he held on
April 1, 1997, as a drill operator at the No. 1 mine, or to a
similar position, at the same rate of pay and benefits IMMEDIATELY
ON RECEIPT OF THIS DECISION.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-6213
Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Dept of Labor, 2002 Richard Jones Blvd.,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Mr. Freddie Hunter, Agent for Service, Boogar Man
Mining, Inc., Route 194, Cow Creek, Box 300, Allen,
KY 41601 (Certified Mail)
C. Graham Martin, Esq., Agent for Service, A & J Fuels, Inc.,
P.O. Box 123, Maple St., Salyersville, KY 41465
(Certified Mail)
Mr. Carl Ray Johnson, Agent for Service, Dema Coal Co., Inc.,
Highway 7, HC 80, Box 1070, Dema, KY 41859
(Certified Mail)
Mr. Barry Moore, Box 1323, Martin, KY 41649
(Certified Mail)
Mr. Freddie Hunter, Boogar Man Mining, Inc., Route 194,
Cow Creek, Box 300, Allen, KY 41601
(Certified Mail)
Mr. Michael Brown, P.O. Box 483, McDowell, KY 41647
(Certified Mail)
/lt
**FOOTNOTES**
[1]: Barry Moore and Freddie Hunter are principal
shareholders in Boogar Man Mining, Inc. and Dema Coal Company,
Inc. is alleged to exercise control over the No. 1 mine in the
production of coal. Accordingly, Moore, Hunter and Dema are
operators within the meaning of section 3(d) of the Act, 30
U.S.C. � 802(d), and are Respondents to this proceeding along
with Boogar Man and A & J Fuels.