.
PONTIKI COAL CORPORATION
March 31, 1995
KENT 94-1274-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 31, 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, :
Complainant :
v. : Pontiki No. 2 Mine
: Mine ID 15-09571
PONTIKI COAL CORPORATION, :
Respondent :
ORDER DENYING MOTION TO DISMISS ON REMAINING ISSUES
The Order Granting Partial Dismissalz issued
February 6, 1995, (amended on March 10, 1995), left
certain issues to be resolved following limited
evidentiary hearings. Hearings were thereafter held on
March 9, 1995. For the reasons set forth herein, those
issues are now resolved in favor of the complainant.
One of the issues remaining from Respondent's Motion
to Dismiss was its claim that the Secretary's complaint
in this case was untimely filed. It is undisputed that on
April 26, 1994, Charles H. Dixon filed with the Mine
Safety and Health Administration (MSHA) a complaint
alleging discriminatory acts from around March 11, 1994,
through April 15, 1994. This complaint was received by
the Secretary on April 26, 1994. Accordingly, the 90 days
within which the Secretary must notify the complainant of
his determination whether a violation has occurred,
expired on July 25, 1994. Section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 801 et. seq., the "Act."
It is further undisputed that the Secretary did not
until September 2, 1994, file its complaint on behalf of
Dixon with this Commission. Moreover, it was not until
September 15, 1994, that the Secretary actually mailed
to Dixon, with copies to Respondent, a copy of the
Secretary's written determination that Dixon had been
discriminated against and stating therein that a complaint
had already been filed with the Commission on Dixon's
behalf. Thus, the complaint in this case which was not
filed with this Commission until September 2, 1994, was
filed 129 days after Dixon's initial complaint was
received by the Secretary. Furthermore, the Secretary's
written determination issued in accordance with Section
105(c)(3) of the Act on September 15, 1995, was issued
some 142 days after the initial complaint was received
by the Secretary.
It is apparently on the basis of these delays that
the Respondent seeks dismissal for untimely filing.
However, as the Respondent notes, this Commission restated
in Gilbert v. Sandy Fork Mining Company, 9 FMSHRC 1317
(1987), rev'd on other grounds, 866 F2d 1433
(D.C. Cir 1989), that the 90 day deadline for completion
of the Secretary's investigation and commencement of a
miner's discrimination complaint is not jurisdictional.
The Commission noted that this was the case because a
"complainant should not be prejudiced because of the
failure of the government to meet its time obligations".
In general, when dealing with late-filings of a few
days or even a few months, the Commission has determined
that the time limits in Sections 105(c)(2) and (3) are
not jurisdictional and that the failure to meet them
should not result in dismissal absent a showing of
material legal prejudice. See, e.g., Secretary on behalf
of Hale v 4 - A Coal Company, 8 FMSHRC 905, (June 1986).
The delay in this case of only a few days is indeed
quite limited and Respondent has failed to show any legal
prejudice caused by the delay. In addition, I find, based
on the affidavit of Associate Regional Solicitor, Ralph
York, that there was some justification for the delay
(Government Hearing Exhibit No. 1). Accordingly, I find
no basis for dismissal because of untimely filing.
The next unresolved issue is Respondent's claim that
Mr. Dixon's Certificate of Representation, received by
Pontiki on April 15, 1994, was defective and not legally
binding because it failed to comply with the Secretary's
regulations at 30 C.F.R. � 40.3(a). The cited 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 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 certification at issue in this case was
submitted at hearing (Government Hearing Exhibit No. 3)
and, contrary to Respondent's allegations, clearly sets
forth the "title" or "position" of Mr. Dixon as
"international representative". Furthermore, a telephone
number is provided on the face of the certificate which
purports to be that of Dixon. The regulation does not
require the representative to provide a home telephone
number as Respondent seems to suggest. Under the
circumstances, Respondent's argument herein is clearly
without merit.
Finally, Respondent has argued that the Secretary
failed to comply with Commission Rule 44(a), 29 C.F.R.
�2700.44(a), in that the Secretary's amended complaint
failed to include "a short and plain statement of
supporting reasons based on the criteria for penalty
assessment set forth in Section 110(i) of the Act".
Whether or not the Secretary's amended complaint failed
to comply with Commission Rule 44(a) is now moot however
since the Secretary has, in fact, filed a second amended
complaint meeting the requirements of the Rule. The
Respondent's argument on this issue is, accordingly, also
rejected.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U.S.
Dept. of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell
& Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C.
20004-2595
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