.
WYOMING FUELS-WYOMING, INC. d/b/a DRY FORK COAL COMPANY
Docket No. WEST 2002-304-D
July 3, 2002



        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD

                     DENVER, CO 80204-3582

                 303-844-3577/FAX 303-844-5268

                          July 3, 2002


HAZEL OLSON,                    : DISCRIMINATION PROCEEDING
               Complainant      :
                                : Docket No. WEST 2002-304-D
                                : DENV CD 2001-03
                                :
     v.                         : Mine I.D. 45-03357
                                : Dry Fork Mine
WYOMING FUELS-WYOMING, INC.,    :
   d/b/a DRY FORK COAL COMPANY  :


 ORDER DESCRIBING PURPOSE OF SECTION 105(C)(3) OF THE MINE ACT
        ORDER GRANTING COMPLAINANT AN EXTENSION OF TIME

     Hazel Olson called my office several times over the past week
stating that she is seeking from the Department of Labor's Mine Safety
and Health Administration ("MSHA") a copy of the file developed during
MSHA's investigation of her discrimination complaints.  Apparently,
Ms. Olson has filed a Freedom of Information Act request with Sandra
L. Yamamoto of MSHA's Technical Compliance and Investigation Division.
She states that she needs this information to respond to Respondent's
renewed motion to dismiss.

     Under section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 815(c)(2)("Mine Act"), any miner or applicant for
employment may file a complaint with MSHA alleging that he or she was
discriminated against in violation of section 105(c)(1). MSHA is
required to investigate the complaint of discrimination.  If "upon
such investigation," MSHA determines that section 105(c)(1) was
violated, MSHA is required to file a complaint of discrimination on
behalf of the complainant with the Federal Mine Safety and Health
Review Commission (the "Commission").  If, on the other hand, MSHA
determines that section 105(c)(1) was not violated, "the complainant
shall have the right . . . to file an action on his own behalf before
the Commission, charging discrimination or interference in violation
of paragraph (1)."  30 U.S.C. � 815(c)(3).

     The Commission is an independent agency that is not part of the
Department of Labor or MSHA.  In her response to Chief Judge Barbour's
order to file an amended complaint, Ms. Olson replied:

          I can't get an interview for a job, much less a job, because
          MSHA has not done what they are supposed to do and protect
          me when I filed complaints.  They just hung me out to dry.

     As an administrative law judge with the Commission, I do not have
the authority to order MSHA to reopen its investigation so that it can
more thoroughly investigate Ms. Olson's complaints.  I also do not
have the authority to require MSHA to provide Ms. Olson with a copy of
all or portions of its investigative files.  Section 105(c)(3) of the
Mine Act authorizes Ms. Olson to "file an action on her own behalf."
Section 105(c)(3) was enacted to give a complainant an opportunity to
try to establish that he or she was discriminated against, despite the
fact that MSHA determined that there was no discrimination.
Consequently, this case is not an appeal of MSHA's decision not to
file a discrimination complaint but is a new, independent proceeding
brought by Ms. Olson on her own behalf.  The Commission does not
review MSHA's investigation to determine whether it was competent or
to determine whether MSHA's conclusions were correct.  Neither the
Secretary of Labor nor MSHA are a party in this case.

     In order to prevail in this case, Ms. Olson must establish, "on
her own behalf," that she engaged in protected activity and that
Respondent's decision not to hire her was motivated at least in part
by that protected activity.  Commission Rule 42, 29 C.F.R. � 2700.42,
requires that a complaint of discrimination "include a short and plain
statement of the facts, setting forth the alleged discharge,
discrimination or interference, and a statement of the relief
requested."  In his order of May 24, the Commission's chief judge
required Ms. Olson to amend her complaint to "state clearly what
rights she allegedly exercised, when she allegedly exercised them, and
what adverse action she allegedly suffered as a result, and when she
suffered them," as required by Rule 42.  Ms. Olson's response, dated
June 12, 2002, contains some general allegations. Respondent filed a
renewed motion to dismiss following its receipt of Ms. Olson's
response.

     Ms. Olson must respond to Respondent's renewed motion to dismiss.
In her response, Ms. Olson should list the facts that she is relying
on to establish that she was discriminated against.  The list of facts
must include what Mine Act rights she raised and when and where she
raised them, and what adverse actions she suffered at the hands of
Respondent and when and where she suffered them.  Ms. Olson is the
complainant in this case and she should have these facts at her
disposal.

     Because Ms. Olson is not represented by counsel and it appears
that she originally believed that the Commission is empowered to
review MSHA's investigation of her complaints, I am granting her an
extension of time to respond to Respondent's renewed motion to
dismiss. Ms. Olson shall file her response to the renewed motion to
dismiss, as described above, on or before August 5, 2002.



                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Ms. Hazel Olson, 16 Whoop-Up Canyon Road, Newcastle, WY 82701-9702

Rex E. Johnson, Esq., Sherard, Sherard & Johnson, P.O. Box 69,
Wheatland, WY 82201-0069

RWM