.
MINERAL RECOVERY SPECIALISTS, INC.
Docket No. WEST 2002-408-DM
September 6, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
September 6, 2002
THOMAS P. DYE II, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 2002-408-DM
: RM MD 02-11
:
v. : Mine I.D. 05-01732
: Cotter Mill
MINERAL RECOVERY SPECIALISTS, INC., :
Respondent:
PREHEARING ORDER
This proceeding was brought by Thomas P. Dye against Mineral Recovery
Specialists, Inc., ("MRSI") under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq. ("Mine Act") and 29 C.F.R.� 2700.40
et seq. The complaint alleges, in part, that MRSI violated section 105(c) of
the Mine Act when it did not hire Dye as a permanent employee because he
insisted that a recently repaired piece of equipment be fully safety-tested
before it was put back into service. MRSI has retained counsel who states that
he will be filing a more complete response to Mr. Dye's complaint. Section
105(c)(3) of the Mine Act provides that proceedings under section 105(c) shall
be "expedited by the ... Commission."
It is important for Mr. Dye and MRSI to understand the limits of my
jurisdiction. I do not have authority to determine whether any actions taken
against Mr. Dye by MRSI were unfair and unreasonable unless such actions
violated the anti-discrimination provisions of the Mine Act at 30 U.S.C.
� 815(c). Under that provision, a mine operator is prohibited from
discriminating against a miner or applicant for employment because he complained
about safety or health conditions at the mine or refused to perform a task that
he reasonably and in good faith believed presented a hazard to his safety or
health. A miner's safety complaints or actions are known as "protected
activity." A mine operator may not take adverse action against a miner for such
protected activity.
If the parties are unable to settle the case and if the case is not
otherwise dismissed, a formal hearing will be held. The issues at the hearing
will include whether MRSI discriminated against Mr. Dye. At a hearing, Mr. Dye
will be required to present evidence that he engaged in protected activity and
that MRSI's adverse actions were motivated at least in part by that protected
activity. MRSI may attempt to rebut Mr. Dye's case at the hearing by presenting
evidence that either no protected activity occurred or that the actions taken
with respect to Mr. Dye were in no part motivated by the protected activity. If
MRSI is unable to present such evidence, it may present evidence that the
actions it took with respect to Mr. Dye were also motivated by unprotected
activities and that it would have taken these actions for the unprotected
activity alone.
The Federal Mine Safety and Health Review Commission is not part of the
Department of Labor's Mine Safety and Health Administration (MSHA). Section
105(c)(3) of the Mine Act authorized Mr. Dye to file this case on his own
behalf. This provision provides him with an opportunity to try to establish
that he was discriminated against. Consequently, this case is not an appeal of
MSHA's decision not to file a discrimination complaint on behalf of Mr. Dye, but
it is a new, independent proceeding brought by Mr. Dye on his own behalf. I do
not have the authority to review MSHA's investigation to determine whether it
was competent or to determine whether MSHA's decision to not bring a case was
defensible. Neither MSHA nor the Secretary of Labor is a party in this
proceeding. If Mr. Dye and MRSI are not able to settle this case, Mr. Dye will
be required to present evidence at a hearing to establish that MRSI
discriminated against him in violation of section 105(c) of the Mine Act, as
described above.
1. MRSI shall file its answer in this case on or before September 20,
2002. In order to encourage the parties to settle this case, counsel for MRSI
shall contact Mr. Dye to discuss settlement. The parties shall confer as often
as necessary to negotiate a settlement. If the parties are unable to settle the
case, they shall attempt to narrow the issues, enter into stipulations, and
discuss proposed hearing dates.
2. On or before October 18, 2002, the parties shall initiate a conference
call with me to discuss the status of the case, potential hearing dates, and
other matters that they wish to discuss.
Richard W. Manning
Administrative Law Judge
Distribution:
Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664
Van F. McClellan, Esq., Bearfield & McClellan, P. O. Box 4210, Johnson City, TN
37602-4210
RWM