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[DOCID: f:kt200122o1.wais]

 
BR&D ENTERPRISES, INC
January 10, 2001
KENT 2001-22-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        January 10, 2001

SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION, on behalf of  :
  DEWAYNE YORK,                 : Docket No. KENT 2001-22-D
               Complainant      : BARB-CD-2000-06
          v.                    :
                                : BR&D #3 Mine
BR&D ENTERPRISES, INC,          : Mine ID 15-18028
               Respondent       :

             ORDER GRANTING MOTION TO AMEND COMPLAINT
         ORDER DENYING RECONSIDERATION OF  ORDER DENYING
                 MOTION TO DISMISS THE COMPLAINT

     This  matter  is  before me on a Complaint of Discrimination
filed  by  the Secretary of  Labor  on  behalf  of  Dewayne  York
pursuant to  section  105(c)(2)  of  the  Federal Mine Safety and
Health Act of 1977 (the "Act"), 30 U.S.C. �  815(c)(2).  By Order
dated  December  19,  2000,  Respondent's motion to  dismiss  the
complaint was denied.  Thereafter,  Respondent  filed  a reply to
the Secretary's opposition to its motion to dismiss and  included
an affidavit in support of a claim of prejudice.  The reply  will
be  considered  a  request  to  reconsider  the Order denying the
motion  to  dismiss.   The  Secretary  has  moved  to  amend  the
complaint  to include a demand for assessment of a civil  penalty
in the amount  of  $7,000.00. Respondent has opposed that motion,
in essence on the basis  of  the  previously  rejected timeliness
argument.  For the reasons set forth below, Respondent's  request
for  reconsideration  of  the denial of its motion to dismiss  is
denied and the Secretary's  motion  to  amend  the  complaint  is
granted.

The Motion to Dismiss the Complaint

     Respondent's   reply   reiterates   its  position  that  the
Secretary must initially demonstrate good  cause  for  the  late-
filing  of  a  discrimination  complaint,  before  the  issue  of
prejudice  is  addressed.  The argument is misplaced and is again
rejected.  The authorities cited by Respondent are administrative
law judge decisions  dealing  with  situations  where a miner has
failed to timely file a complaint of discrimination  with MSHA[1]
or   the   Secretary   did   not  timely  file  a  civil  penalty
proceeding.[2]   Those  situations   are   not   presented  here.
Respondent's allegations are directed at delay by  the Secretary.
As  noted  in  the  original  order,  there is settled Commission
precedent to the effect that the Secretary's  failure  to  comply
with  time limits for filing a complaint of discrimination should
not result  in  dismissal  absent  a  showing  of  material legal
prejudice.  Secretary of Labor on behalf of Hale v. 4-A Coal Co.,
Inc., 8 FMSHRC 905, 908 (June 1986); Secretary of Labor on behalf
of  Nance v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC  2208,
2215   (November   1994).   The  Secretary  is  not  required  to
demonstrate  good  cause   for   the   untimely   filing   of   a
discrimination   complaint  before  the  issue  of  prejudice  is
addressed.

     Respondent's  reply  includes a specific claim of prejudice,
i.e., that the delay has resulted  in  additional expenditures in
the form of payment of wages to the Complainant  pursuant  to  an
economic  reinstatement  agreement.   While Respondent's exposure
under  the  economic  reinstatement  agreement   may   have  been
increased  due  to the Secretary's delay, its decision to  forego
performance of work  by  Complainant  was  voluntary, and, in any
event,  the  economic  detriment  claimed  does  not   constitute
material  legal  prejudice  to its ability to defend against  the
allegations.

     The  Complainant  was  discharged  on  May  25,  2000.   The
Secretary filed an Application  for  Temporary  Reinstatement  on
behalf  of  Complainant  and  on  August  29,  2000,  following a
hearing,  a  Decision  and  Order of Temporary Reinstatement  was
issued directing Complainant's  immediate  reinstatement  to  his
former   position   at   the  same  rate  of  pay  and  benefits.
Complainant did not actually return to work, however, because the
parties agreed to economic  reinstatement,  i.e., the Complainant
would  receive  pay and benefits as if employed,  but  would  not
actually return to work.  Respondent, therefore, agreed to forego
Complainant's actual  performance of work until a decision on the
merits of his discrimination allegation was made.

     The prejudice alleged  is  that  the  Secretary's  delay  of
approximately  two  months  in  filing  the complaint, has caused
Respondent  to pay more money to Complainant  than  it  otherwise
would have.  Respondent argues that it "is unconscionable for the
Secretary to  obtain  an  order of reinstatement utilizing the de
minimis standard of `not frivolously brought,' obtain an order of
economic  reinstatement  for  the  complainant  to  the  economic
detriment of the respondent,  and  then fail to timely act in the
filing  of  a  discrimination  complaint   *  *  *  ."[3]   While
Respondent's  argument  has  legitimate appeal  from  a  fairness
standpoint,  it fails, both factually  and  legally,  to  justify
dismissal of the complaint.


**FOOTNOTES**

     [1]: Lamas v. Duval Corp., 9 FMSHRC 306 (February 1987).

     [2]: Secretary of Labor v. Hudgeons, 22 FMSHRC 272 (February
2000), erroneously cited in the reply as Secretary o/b/o Hudgeons
v. Ash Grove Cement Co.

     [3]: Reply at p. 3.
     Factually,  the  only  order  obtained  by  the Secretary on
behalf   of   the   Complainant   was   an  order  directing  his
reinstatement  to  his  former position.[4]   Under  that  order,
Respondent is obligated to  pay the Complainant commensurate with
his earnings prior to his discharge.   Respondent,  in  turn, was
entitled   to   Complainant's   performance   of  his  employment
obligations.   The Decision and Order of Temporary  Reinstatement
did not envision  any  economic or other detriment to Respondent,
but, merely the avoidance  of  economic  hardship  to Complainant
while his complaint was being investigated and resolved.


     While  the  authority relied upon by Respondent,  Farmer  v.
Island Creek Coal Co., 13 FMSHRC 1226, 1231 (May 1991), marginally 
supports its argument that expenses resulting  from  delay can be  
considered  in the prejudice analysis, that case makes clear that 
a demonstration of material legal prejudice sufficient to justify 
dismissal requires much  more  than Respondent alleges here.  As 
Farmer makes clear, the type of legal  prejudice  that  must  be 
demonstrated to have resulted from "serious" delay is a significant  
impairment  of  a respondent's "meaningful opportunity to defend." 
Id.  Cited as  examples  were  "tangible  evidence that has since  
disappeared, faded memories, or missing witnesses."  Id., quoting 
from Schulte v. Lizza Indus. Inc., 6 FMSHRC 8, 13 (January 1984).

     Respondent's demonstration  fails when measured against this
standard.   First, it is not at all  clear  that  the  relatively
minor delay of  approximately  two  months  has  caused increased
expenditures  for  Respondent.   While arguable, it is  far  from
certain that the delay in filing of  the discrimination complaint
will  result, or has resulted, in a corresponding  delay  in  its
ultimate resolution.  It is also unclear whether Respondent could
have avoided  unanticipated lengthening of the economic detriment
that it voluntarily  undertook.   It  might  have,  for  example,
sought relief from the economic reinstatement agreement once  the
theoretical last day for filing the complaint passed.

     Even  if Respondent suffered its claimed economic detriment,
however, it  is  simply not the type of prejudice that could rise
to the level of material  legal prejudice justifying dismissal of
the complaint.

     Accordingly, Respondent's  request  to  reconsider the order
denying its motion to dismiss the complaint is DENIED.


**FOOTNOTES**

     [4]: By letter dated October 11, 2000, the parties submitted
a  proposed  amendment  to  the Decision and Order  of  Temporary
Reinstatement,    entitled:    "Agreed    Order    on    Economic
Reinstatement."  Because of concerns about jurisdiction that were
not addressed in the submission,  it  was returned to the parties
for possible re-filing either with the  undersigned  or  with the
Commission itself. 


The Secretary's Motion to Amend the Complaint

     The original complaint filed in this case included a  prayer
for "assessment of an appropriate civil money penalty against the
respondent for its violation of * * * the Act."  Complaint at pp.
3-4.   The  Secretary has moved to amend the complaint to specify
that the amount  of  the civil penalty proposed is $7,000.00, and
to add allegations addressed to the penalty criteria specified in
�  110(i)  of  the  Act.   Respondent  has  opposed  the  motion,
advancing the timeliness  argument  relied  upon in its motion to
dismiss.

     Under  long-standing Commission precedent,  the  complaint's
initial  allegations  as  to  the  civil  penalty  were  markedly
deficient.   In  Secretary  of  Labor  on  behalf  of  Hannah  v.
Consolidation  Coal Co., 20 FMSHRC 1293, 1301-02 (December 1998),
the Commission noted:

          In 1983,  the  Commission  held that the Secretary
     must  propose  penalties in discrimination  cases,  and
     must support such proposals with allegations on each of
     the criteria.  Secretary  of  Labor on behalf of Bailey
     v. Arkansas-Carbona Co.,      5  FMSHRC  2042,  2044-48
     (Dec. 1983). * * * *

          Commission  Procedural  Rule 44(a) was promulgated
     to  codify  this  holding.  * * *  *  It  requires  the
     Secretary,  in  connection  with   any  proposed  civil
     penalty for a violation of section 105(c)  she  alleges
     in a discrimination complaint, to provide "a short  and
     plain  statement  of  supporting  reasons  based on the
     [section 110(i)] criteria."  29 C.F.R. � 2700.44(a).  
     * * * *

     The  amendments  proposed  by the Secretary would remedy the
complaint's  shortcomings  with  regard   to  the  civil  penalty
allegations.

     Guided by Fed. R. Civ. P. 15(a), motions  to amend pleadings
in  Commission proceedings  are to be freely granted  unless  the
moving  party has been guilty of bad faith, acted for purposes of
delay, or  a  hearing  on  the  merits  would  be unduly delayed.
Prejudice  to  the  opposing  party  may  also  bar an  otherwise
permissible  amendment.  Wyoming Fuel Co., 14 FMSHRC  1282,  1289
(August 1992);  Cyprus  Empire  Corp.,  12  FMSHRC  911, 916 (May
1990).   There  are  no  allegations of bad faith or undue  delay
here.

     As noted in the discussion of Respondent's argument that the
complaint  should  be  dismissed,   there   is  also  no  legally
cognizable prejudice that would be occasioned  by granting of the
motion.   Respondent  was  on  notice,  even  with  the   cursory
allegations of the initial complaint, that it would be subject to
a  civil  penalty  of  up  to  $50,000.00 if it was found to have
violated the discrimination provisions  of  the Act.  30 U.S.C. �
820(a).  The proposed amendments merely specify the amount of the
civil  penalty  proposed  by  the  Secretary and add  allegations
addressing the penalty criteria.

     The  Secretary's motion to amend  the  complaint  is  hereby
GRANTED.  Respondent  shall  answer  the amended complaint within
ten days after service of this Order.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of  Labor,  2002 Richard Jones Rd., Suite  B-201,  Nashville,  TN
37215 (Certified Mail)

J. P. Cline III,  Esq.,  P.O.  Drawer 2220, Middlesboro, KY 40965
(Certified Mail)

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