.
RONDY'S INC. d/b/a IDAHO LIME
May 14, 1999
WEST 99-107-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                          May 14, 1999

SECRETARY OF LABOR, MSHA        :  DISCRIMINATION PROCEEDING
  on behalf of ALLEN HAMILTON,  :
               Petitioner       :  Docket No. WEST 99-107-DM
                                :
          v.                    :
                                :  Lime Mountain Quarry
RONDY'S INC. d/b/a IDAHO LIME,  :
           a corporation,       :
               Respondent       :


                 ORDER DENYING MOTION TO DISMISS
                    AND FOR SUMMARY DECISION

     Respondent filed a motion to dismiss this case on the
grounds that:  (1) the Secretary of Labor failed to notify 
Mr. Hamilton of her determination that Respondent violated 
section 105(c) of the Federal Mine Safety and Health Act of 
1977, 30 U.S.C. � 815(c) ("Mine Act"), within 90 days of 
receipt of Mr. Hamilton's complaint of discrimination, as
required by section 105(c)(3); and (2) the Secretary of Labor 
failed to file a discrimination complaint with the Commission 
within 30 days after her written determination that a violation
occurred, as required by 29 C.F.R. � 2700.41(a). In the 
alternative, Respondent argues that it is entitled to summary 
decision on the same grounds. The Secretary of Labor opposes 
the motion.

     The essential facts are not in dispute.  Mr. Hamilton 
filed his complaint of discrimination with the Department 
of Labor's Mine Safety and Health Administration ("MSHA") 
on or about August 13, 1997.  He filed this complaint within 
60 days of the alleged act of discrimination, as required by
section 105(c)(2).  By letter dated October 29, 1998, counsel 
for the Secretary notified Respondent and Mr. Hamilton of 
MSHA's belief that Respondent had terminated Mr. Hamilton 
from his employment in violation of section 105(c). In the
letter, counsel suggested that the parties attempt to settle 
the matter.  The case did not settle and, after a change in 
the Secretary's counsel, a formal complaint of discrimination 
was filed with the Commission on or about January 22, 1999.

     It is clear that the Secretary violated section 105(c)(3)
of the Mine Act by failing to notify Mr. Hamilton of her 
"determination whether a violation . . . occurred" within 90 
days of receipt of his complaint.  It is also clear that this 
time-frame is not jurisdictional.  The legislative history of
the Mine Act states that the deadlines imposed on the Secretary 
in section 105(c) are not jurisdictional and that the failure 
of the Secretary to meet them "should not result in the
dismissal of the discrimination proceedings; the complainant 
should not be prejudiced because of the failure of the 
Government to meet its time obligations."  S. Rep. No. 181, 
95th Cong., 1st Sess. 36 (1977), reprinted in Senate 
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2nd Sess., Legislative History of the Federal Mine 
Safety and Health Act of 1977 at 624 (1978).

     In interpreting the deadlines imposed on the Secretary 
in section 105(c), the Commission concluded that the "fair 
hearing process envisioned by the Mine Act does not allow us 
to ignore serious delay by the Secretary in filing a 
discrimination complaint if such delay prejudicially deprives 
a respondent of a meaningful opportunity to defend itself 
against the claim."  Secretary of Labor for Donald R. Hale
v. 4-A Coal Co., Inc., 8 FMSHRC 905, 908 (June 1986).  
Accordingly, the Commission held that a discrimination 
complaint is subject to dismissal when the Secretary failed 
to meet the statutorily imposed deadlines "if the [mine] 
operator demonstrates material legal prejudice attributable
to the delay."  Id.  This test requires more than a mere 
allegation of prejudice.

     The Secretary states that MSHA's investigation of Mr.
Hamilton's complaint was not completed on time because: (1) 
Mr. Hamilton claims that he was exposed to toxic substances 
and MSHA needed to consult with an expert toxicologist; and 
(2) Mr. Hamilton was difficult to reach because he did not
have a telephone.  The Secretary states that the delay in 
this case was reasonable and that Mr. Hamilton's discrimination 
claim should not be dismissed.

     Respondent does not allege that it was materially prejudiced
by this delay.  There has been no showing that the Secretary's 
failure to report its findings to Mr. Hamilton with 90 days has 
hindered the ability of Respondent to defend itself in this case.  
I agree with the Secretary that Respondent has not set forth 
adequate grounds to dismiss this case because of this delay.

     Rule 41(a) of the Commission's procedural rules provides
that the Secretary shall file her discrimination complaint "within 
30 days after his written determination that a violation has 
occurred."  29 C.F.R. � 2700.41(a).  Respondent contends that 
the letter it received from William Kates of the Office of the 
Solicitor on or about October 29, 1998, constitutes the 
Secretary's written determination that a violation occurred. It
contends that since the Secretary failed to initiate this 
proceeding within 30 days thereafter, the case should be 
dismissed.

     The Secretary contends that Mr. Kates' letter was written 
as a courtesy to open settlement negotiations. The Secretary 
maintains that this proceeding should not be dismissed because 
she attempted to initiate settle negotiations in good faith. 
She contends that the letter was not her "written determination" 
that a violation occurred. In addition, the Secretary argues 
that even if the letter is deemed to be her written determination
of a violation, the case should not be dismissed because 
Respondent was not prejudiced by the delay.

     For the reasons set forth above, Respondent has not set
forth sufficient grounds to dismiss this case. Even if I assume 
that the October 29 letter was the Secretary's written 
determination of a violation, there has been no showing that 
the delay has materially prejudiced Respondent.  The parties 
were engaged in settlement negotiations during that period.

     For the reasons set forth above, Respondent's motion to
dismiss this proceeding or in the alternative for summary 
decision is DENIED.  Dismissal is a harsh remedy and 
Mr. Hamilton should not have his case dismissed because the 
Secretary of Labor was not able to meet the deadlines set 
forth in the Mine Act or the Commission's rules in the 
absence of material legal prejudice.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:


Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203-1954  
(Fax and U.S. Mail)

Stephen C. Rice, Esq., Aherin, Rice & Anegon, P.O. Drawer 698,
Lewiston, ID 83501-0698 (Fax and U.S. Mail)

RWM