Gilbert v. Sandy Fork Mining Co., Inc.

Plain-English summary

John A. Gilbert alleged that Sandy Fork Mining discharged him after he refused work he believed was hazardous because of unstable roof conditions at the No. 12 underground coal mine. The Commission affirmed the ALJ's finding that Gilbert was not discriminated against because his August 6 work refusal did not result in an adverse action and his August 7 departure was not a reasonable, good-faith refusal in response to a known hazard. The Commission reversed the ALJ's denial of the Secretary's motion to dismiss Gilbert's separate complaint, holding that a miner could file an individual action under section 105(c)(3) only after the Secretary determined that no violation had occurred. The majority invalidated the portion of Commission Procedural Rule 40(b) allowing an individual complaint after the Secretary failed to act within 90 days, while Commissioners Doyle and Nelson dissented and would have retained the rule.

Decision snapshot

• Cited standards: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 815(c)(3); 30 U.S.C. § 823(d)(2)(A)(ii)(I); 29 C.F.R. § 2700.40(b)
• Outcome: The Commission affirmed dismissal of the Secretary's discrimination complaint, reversed the denial of the motion to dismiss Gilbert's individual complaint, and invalidated the relevant portion of Rule 40(b).
• Key point: A miner's work refusal must be tied to a reasonable, good-faith belief in a hazard and an adverse action motivated by that protected activity, and the majority held that an individual Mine Act discrimination action could not proceed before the Secretary made the statutory determination.

Full text (FMSHRC public release)

CCASE:
JOHN A. GILBERT V. SANDY FORK MINING,
MSHA V. SANDY FORK MINING
DDATE:
19870825
TTEXT:

                                    FMSHRC-WDC
                                    August 25, 1987

JOHN A. GILBERT

v.                Docket No. KENT 86-49-D

SANDY FORK MINING CO., INC.

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA),
on behalf of JOHN A. GILBERT

v.                 Docket No. KENT 86-76-D

SANDY FORK MINING CO., INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

              DECISION

BY: Ford, Chairman; Backley and Lastowka, Commissioners:

 This consolidated discrimination proceeding involves

two discrimination complaints filed on behalf of John A. Gilbert.
Both complaints allege an illegal discharge based on the same
circumstances. The first complaint (Docket No. KENT 86-49-D)
was filed by Gilbert on his own behalf against Sandy Fork Mining
Company, Inc. ("Sandy Fork"). The second complaint (Docket No.
KENT 86-76-D) was filed by the Secretary of Labor on behalf of
Gilbert against Sandy Fork. The complaints allege that Sandy Fork
discharged Gilbert in violation of section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982),
because of his refusal to perform work that he believed to be
hazardous. 1/ Commission Administrative Law Judge

Page 2

1/ Section 105(c) provides in relevant part:

          (1) No person shall discharge or in any
 manner discriminate against or cause to be
 discharged or because discrimination against or
 otherwise interfere with the exercise of the
 statutory rights of any miner ... because such
 miner ... has filed or made a

Page 3

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Gary Melick issued a decision: (1) denying the Secretary's motion
to dismiss the complaint filed by Gilbert on his own behalf; and

  complaint under or related to this [Act], including
  a complaint notifying the operator or the operator's
  agent ... of an alleged danger or safety or health
  violation in a coal or other mine ... or because of
  the exercise by such miner ... of any statutory right
  afforded by this [Act].

          (2) Any miner ... who believes that he has been
discharged, interfered with, or otherwise discriminated
against by any person in violation of this subsection
may. within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward
a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days of the Secretary's
receipt of the complaint.... If upon such investigation, the
Secretary determines that the provisions of this subsection
have been violated, he shall immediately file a complaint with
the Commission, with service upon the alleged violator and the
miner ... alleging such discrimination or interference and
propose an order granting appropriate relief. The Commission
shall afford an opportunity for a hearing ... and thereafter
shall issue an order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's proposed order, or
directing other appropriate relief. Such order shall become
final 30 days after its issuance. The Commission shall have
authority in such proceedings to require a person committing
a violation of this subsection to take such affirmative action
to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement
of the miner to his former position with back pay and
interest. The complaining miner ... may present additional
evidence on his own behalf during any hearing held pursuant
to [t]his paragraph.

         (3) Within 90 days of the receipt of a complaint
filed under paragraph (2), the Secretary shall notify,
in writing, the miner ... of his determination whether a
violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this
subsection have not been violated, the complainant shall

Page 4

have the right, within 30 days of notice of the Secretary's
determination, to file an action in his own behalf before
the Commission, charging discrimination or interference in
violation of paragraph (1). The Commission shall afford
an opportunity for a hearing

Page 5

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(2) concluding that Sandy Fork Mining Company ("Sandy Fork") had
not discriminated against Gilbert in violation of section 105(c)(1)
of the Act. 8 FMSHRC 1084 (July)(ALJ). For the reasons below, we
affirm on substantial evidence grounds the judge's conclusion that
Sandy Fork did not discriminate against Gilbert in violation of the
Act, but we reverse the judge's denial of the Secretary's motion to
dismiss the complaint Gilbert filed on his own behalf.

                 I.

         Facts and Procedural History

For three and a half years prior to August 1985, Gilbert was

employed as a miner at Sandy Fork's No. 12 underground coal mine in
Beverly, Kentucky. During the last two and a half years of that
period, Gilbert worked as an operator of a continuous mining machine
on the second (evening) shift from 3:00 p.m. to 11:00 p.m. During
the relevant time Gilbert worked in the 002 section, which consisted
of six entries.

For several weeks prior to August 6, 1985, the 002 section

had experienced difficult roof conditions caused by "hill seams,"
encountered when mining operations are conducted near surface
outcroppings. 2/ Gilbert testified that during that period rock
had fallen on his mining machine and that on August 5, 1985, he and
another miner operator, Carmine Dean Caldwell, had left certain work
locations because of "working" hill seams -- that is, hill seams
emitting creaking

 ... and thereafter shall issue an order, based upon
 findings of fact, dismissing or sustaining the
 complainant's charges and, if the charges are sustained,
 granting such relief as it deems appropriate, including,
 but not limited to, an order requiring the rehiring or
 reinstatement of the miner to his former position with
 back pay and interest or such remedy as may be appropriate.
  Such order shall become final 30 days after its issuance.
 Whenever an order is issued sustaining the complainant's
 charges under this subsection, a sum equal to the aggregate
 amount of all costs and expenses (including attorney's fees)
 as determined by the Commission to have been reasonably
 incurred by the miner for, or in connection with, the
 institution and prosecution of such proceedings shall be
 assessed against the person committing such violation.
 Proceedings under this section shall be expedited by the

Page 6

Secretary and the Commission.

30 U.S.C.$ 815(c).

2/ A "hill seam" is a crack or fault in a mine roof that generally
has mud or water emanating from it. Tr. I 30, II 143. See also
Shamrock Coal Co., 5 FMSHRC 845, 847 & nn. 3 & 4 (May 1983).

Page 7

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noises indicative of unstable roof conditions. Bureau of Mines,
U.S. Department of the Interior, A Dictionary of Mining, Mineral,
and Related Terms 1244 (1968).

On the afternoon of August 6, 1985, while travelling to the

002 section, Gilbert and Caldwell expressed their concerns about the
roof conditions to Section Foreman Willie Sizemore. Sizemore gave
permission for the two to work together operating one mining machine
so that they could look out for one another's safety. On the section,
Gilbert was told by the miner operator leaving the earlier shift that
the roof was bad and breaking up. Gilbert and Caldwell then examined
the faces in the section. Gilbert testified and the judge found that
the No. 3 entry had a hill seam and a stress crack in the rib and roof
and that the crosscut approaching the No. 4 "kickback" had a hill seam
and stress cracks. 3/ Sizemore and Darrell Huff, Sandy Fork's chief
engineer and acting safety director, also examined the faces on
August 6 and 7, 1985. They testified that there were no exposed hill
seams in the No. 4 kickback, that a crack and hill seam were present
in the No. 3 entry, and that hill seams were present in other areas of
the section. The judge found that there was not an exposed hill seam
in the No. 4 kickback itself.

After examining.the faces on August 6, Gilbert and Caldwell

proceeded to the No. 4 kickback, where one cut of coal remained to be
taken before moving to the No. 3 entry. Sizemore testified and the
judge found that this final cut in the No. 4 kickback involved about
four or five hours of work. Gilbert told Caldwell that he was going
to refuse to cut the coal. He then left the face of the No. 4
kickback, located Sizemore and expressed his concerns about the
condition of the roof. Sizemore testified and the judge found that
Gilbert was referring specifically to roof conditions in the No. 3
entry.

Gilbert testified that Sizemore stated that he would add a

few extra "cribs" as support for the roof or stand with the two
miners as they cut the coal. Sizemore testified that he told Gilbert
that he would have cribs built on both sides of the No. 3 entry, the
only area about which Gilbert had expressed concern. After speaking
with Sizemore, Gilbert went outside and repeated his concerns to
General Mine Foreman Eddie Spurlock. Spurlock told Gilbert that he
would not insist that he resume work, but advised Gilbert to go home
and return the next day to meet with Mine Superintendent Willie Begley
and General Manager Bill Phipps. Gilbert left the mine. After
Gilbert left, Sizemore spent the remainder of the shift having cribs
built in the No. 3 entry.

Page 8

 That same evening Gilbert went to Mine Superintendent Begley's

home to repeat his concerns about the top. Gilbert also asked what
Begley was going to do to get him another job. Begley told Gilbert to
meet with him the next morning at the mine. During the night, a roof
fall occurred in the No. 3 entry and the area was "dangered off."

3/ A "kickback" is an entry mined in the direction opposite to its
normal course because of adverse roof conditions. Tr. I 111; II 140.

Page 9

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On the morning of August 7, 1985, because of Gilbert's
statements and because of the roof fall that had occurred in the No. 3
entry, Begley and Phipps went underground to inspect the face
areas. Gilbert arrived at the mine office about 9:00 a.m., six hours
before his scheduled shift was to begin. While waiting for Begley
and Phipps, Gilbert was told by another miner of the roof fall. When
the two supervisors returned to the office about 9:30 or 10:00 a.m.,
Gilbert asked what they intended to do to support the roof. Begley
and Phipps responded, in essence, that they were doing all they
could to provide adequate support given the roof conditions being
encountered. Begley testified and the judge found that Gilbert
requested alternate work at any mine other than the No. 12 mine.
Begley replied that the only job available for Gilbert was his
present position. Gilbert then handed in his safety equipment and
left the mine.

When Gilbert left the mine on the morning of August 7, he

had not been given a specific assignment as to the work he would be
performing later that day when the evening shift began. The judge
found that "he could not have known where in the No. 12 mine he
would be working." 8 FMSHRC at 1091. According to company records
and Phipps' testimony, Gilbert was paid for one hour's work on
August 6, and was carried on the company rolls as an "absentee"
until August 9, 1985, when the daily report listed him as "quit."

On August 8, 1985, the day after he left the mine, Gilbert

filed a section 105(c) discrimination complaint with the Department
of Labor's Mine Safety and Health Administration ("MSHA") alleging
that he had been discriminatorily discharged. The Secretary of Labor
timely initiated his investigation of the complaint, pursuant to
section 105(c)(2) of the Mine Act. He did not, however, make a
determination within 90 days of receipt of Gilbert's complaint, as
required by section 105(c)(3) of the Act, as to whether a violation
of section 105(c) had occurred. See n. 1 supra.

By letter dated November 15, 1985, the Secretary informed

Gilbert that the investigation into his complaint had not yet been
completed. The letter also stated: "By the terms of the Act and
the Federal Mine Safety and Health Review Commission's procedural
rules, you have a right to file your own complaint with the Commission
because the Secretary has not completed his consideration within
90 days." Thereafter, on December 23, 1985, Gilbert filed his own
discrimination complaint with the Commission pursuant to Commission
Procedural Rule 40(b). 4/ Two

Page 10

4/ Commission Procedural Rule 40(b) states:

          A complaint of discharge, discrimination or
 interference under section 105(c) of the Act, may be
 filed by the complaining miner, representative of
 miners, or applicant for employment if the Secretary
 determines that no violation has occurred, or if the
 secretary fails to make a determination within 90

Page 11

~1332
months later, on February 24, 1986, the Secretary finally filed
with the Commission a section 105(c)(2) discrimination complaint on
behalf of Gilbert. The Secretary then proceeded to move to dismiss
Gilbert's individual complaint in light of the complaint filed by
the Secretary. The administrative law judge deferred ruling on the
motion and permitted both complaints to proceed to hearing.

In his decision on the merits the judge denied the Secretary's

motion to dismiss. Acknowledging that section 105(c) does not
expressly provide a right of action to individual complainants when
the Secretary fails to determine within 90 days whether a violation
of section 105(c) has occurred, he opined that Congress must have
intended that the miner have the right to file a complaint on his own
upon the failure of the Secretary to act within the prescribed 90-day
period. 8 FMSHRC at 1087. The judge pointed to Commission Procedural
Rule 40(b) permitting such complaints in those circumstances. He
accordingly determined that he had jurisdiction to entertain both
complaints. Id.

With respect to the merits of Gilbert's discrimination claims,

the judge treated Gilbert's departure from the No. 4 kickback on the
afternoon of August 6 and from the mine premises on the morning of
August 7 as two distinct work refusals, and found that neither was
reasonable nor made in good faith. 8 FMSHRC at 1090-91. Addressing
the events of August 6, the judge found that Gilbert had four to
five hours of work left in the No. 4 kickback when he refused to cut
coal and that there is "no credible evidence that any unusual hazard
did in fact exist in the No. 4 kickback." 8 FMSHRC at 1091. The judge
concluded:

 It was clearly premature for Gilbert to have
 exercised any work refusal for alleged hazards in
 the No. 3 entry some 4 to 5 hours before he would be
 expected to work in that entry and before any of the
 supplemental roof support promised by his section
 foreman had been erected.... It was incumbent on
 Gilbert to at least wait and see what additional
 support would be provided before exercising a
 work refusal. Accordingly, the work refusal
 was neither reasonable nor made in good faith.

8 FMSHRC at 1091.

Turning to Gilbert's decision on August 7 to leave the mine, the

judge stated:

Page 12

          I also observe that Gilbert had not been
 discharged and was given the opportunity to return to
 work on August 7, the day after he refused to work and
 walked out of the mine. At that time there had already
 been a roof fall in the No. 3 entry and conditions had
 significantly changed. Indeed it

days after the miner complained to the Secretary.

29 C.F.R. $ 2700.40(b).

Page 13

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appeals that when Gilbert was told on August 7,
that he could return to his job in the No. 12 mine
as a continuous miner operator he declined and
insisted on being transferred to a different mine.
At this time he had been given no specific work
assignment and could not have known where in the
No. 12 mine he would be working. Thus again he could
not at this time have entertained a reasonable or a
good faith belief that he would have been required to
work in a hazardous condition.

8 FMSHRC at 1091.

 Noting evidence revealing an interest and request by Gilbert

to transfer to a day shift job, the judge questioned Gilbert's
good faith in his work refusals: "Thus it appears that Gilbert's
refusal to work and his insistence on transferring to another mine
may actually have been motivated by a pressing desire to work on a
different shift." 8 FMSHRC at 1092. In summary, the judge denied
Gilbert's claims on the grounds that his work refusals were not
protected activities, that he suffered no adverse action in that he
was not discharged, and that he voluntarily quit his job on August 7.

                II.

           Discrimination Issues

The general principles governing analysis of discrimination

cases under the Mine Act are settled. In order to establish a prima
facie case of discrimination under section 105(c) of the Mine Act,
a complaining miner bears the burden of production and proof to
establish that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred or
that the adverse action was in no part motivated by protected
activity. If the operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving that it
also was motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity
alone. Pasula, supra; Robinette, supra; see also Eastern Assoc. Coal

Page 14

Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.); Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC,
719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly
identical test under National Labor Relations Act).

The Commission has held that a miner's refusal to perform work

is protected under section 105(c)(1) of the Mine Act if it is based
on a reasonable, good faith belief that the work involves a hazard.
Pasula,

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supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12:
Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC
126, 133-36 (February 1982) See also Secretary on behalf of Cameron v.
Consolidation Coal Co., v. FMSHRC, 7 FMSHRC 319, 321-24 (March 1985),
aff'd sub nom. Consolidation Coal Co. v. FMSHRC, 795 F.2d 364, 366-68
(4th Cir. 1986); Secretary of Labor v. Metric Constructors, Inc.,
6 FMSHRC 226, 229-31 (February 1984), aff'd. sub nom. Brock v. Metric
Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985); Miller v.
FMSHRC, 687 F.2d 194, 195-97 (7th Cir. 1982). If an operator takes
an adverse action against a miner in any part because of a protected
work refusal, a prima facie case of discrimination is established.
E.g., Dunmire & Estle, supra, 4 FMSHRC at 132-33: Metric Constructors,
supra, 6 FMSHRC at 229-30, aff'd, 766 F.2d at 472-73.

We first consider Gilbert's refusal on August 6 to begin

cutting coal in the No. 4 kickback. The judge found that Gilbert's
safety concerns related solely to roof conditions in the No. 3 entry,
conditions to which he would not have been exposed for several hours,
and that his refusal to work was premature and evidenced a lack of
required good faith and reasonableness. Counsel for both Gilbert
and for the Secretary have presented us with extensive evidentiary
challenges to these findings, effectively inviting us to decide the
case de novo. Our role, however, is to review the record to
determine if substantial evidence supports the judge's findings of
fact. 30 U.S.C. $ 823(d)(2)(A)(ii)(I). In any event, we find it
unnecessary to specifically address every contested fact in this
regard, for we can assume for purposes of our decision that Gilbert
engaged in a protected work refusal on August 6 based on a good faith,
reasonable belief in hazardous roof conditions. 5/

Under the Mine Act, a protected work refusal itself does not

implicate a violation of section 105(c) of the Mine Act if it does
not result in an adverse action motivated by that protected activity.
When Gilbert refused to cut coal on August 6, he was not ordered to
resume work nor was he suspended or discharged. On the contrary, his
foreman heard him out and proceeded to address the complaints by
erecting support cribbing in the No. 3 entry. Further, Gilbert was
able to leave the mine for additional discussion with the general mine
foreman, who

5/ For the sake of clarity, however, we conclude that substantial
evidence does not support the judge's finding that Gilbert's
concerns on August 6 were limited solely to the No. 3 entry. Rather,
his fears regarding roof conditions extended to other work areas as
well. Tr. I 23-24, 32, 33, 47, 54. Also, with respect to the events

Page 16

of August 6, we reject any implication in the judge's decision that a
miner cannot exercise a valid work refusal until the precise moment
of beginning the work that he reasonably fears poses a hazard. In
some circumstances a miner properly could refuse work at some point
in time in advance of the start of his hazardous assignment. Such a
refusal would still be measured against the standards of good faith
and reasonableness. As we make clear in our discussion of Gilbert's
actions on August 7, however, his refusal on that date was too
anticipatory and premature and, therefore, was unprotected.

Page 17

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allowed Gilbert to go home for the remainder of his shift.
Substantial evidence supports the judge's findings -- and indeed
it is indisputable on this record -- that Gilbert was not discharged
nor otherwise subjected to adverse action on August 6 or 7 because of
his August 6 work refusal. Therefore, even assuming a protected work
refusal on August 6, it did not result in an illegal adverse action
against Gilbert.

The disposition of this case turns on the events of the

morning of August 7. The record leaves no doubt that Gilbert
refused to work as miner operator and left the mine premises
several hours before his shift was scheduled to begin. The judge
found that when Gilbert confronted mine management on the morning of
August 7, the precise conditions that he had observed on the previous
day had changed significantly. The judge also found because Gilbert
had not received any assignment to a specific area of the mine, "he
could not at this time have entertained a reasonable or good faith
belief that he would have been required to work in a hazardous
condition." 8 FMSHRC at 1091. The judge further found that Gilbert's
decision most likely was motivated by his desire to be transferred to
the day shift or to another mine, and that he was not discharged but
"voluntarily gave up his job on August 7, 1985, at a time when he was
not faced with any specific hazard." 8 FMSHRC at 1092. Substantial
evidence supports these determinations.

By the morning of August 7, as the judge pointed out,

conditions in the mine had changed from the previous day. The No. 3
entry had been closed off and the last cut in the No. 4 kickback
apparently had been completed on an earlier shift. Therefore, it
appears that Gilbert would not be returning to the areas he had
examined a day earlier. In any event, Gilbert's refusal occurred
some five hours before he was scheduled to return to work on the
evening shift of August 7. We agree with the judge's substantially
supported finding that Gilbert could not reasonably have known at
that time the specific areas of the mine in which he would be working
later. Moreover, and importantly, given the dynamics of mining
operations, Gilbert could not have known the actual mining conditions
that would be present five hours later -- especially in view of the
operator's efforts to address the roof problems. In Dunmire & Estle,
supra, the Commission held that a failure to examine personally an
allegedly hazardous work area did not necessarily indicate bad faith
nor lack of reasonable belief. 4 FMSHRC at 137. Unlike the situation
in the present case, however, the safety hazards in Dunmire & Estle
were located in an existing work area to which the complainants
already had been assigned and were about to enter to begin their

Page 18

assigned work and which had been recently examined first-hand by other
miners. 4 FMSHRC at 128-29, 137-38. In short, substantial evidence
supports the judge's conclusion that Gilbert refused work unreasonably
and prematurely on the morning of August 7 and that his work refusal
at that time accordingly lacked the required basis of a good faith,
reasonable belief in a hazard exposing him to a danger.

In reaching this conclusion, we also are persuaded by the fact

that Sandy Fork's supervisors and managers did not react to Gilbert's
precipitately or manifest retaliatory intent. As noted, on August 6
management's reaction was supportive and aimed at correcting the roof
conditions concerning Gilbert. On the morning of August 7, both Mine

Page 19

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Superintendent Begley and General Manager Phipps inspected
underground conditions being encountered. To deem Gilbert's refusal
to work on August 7 to be protected would be to deprive the operator
of a reasonable opportunity to fully address complained-of hazards
before incurring legal liability.

Finally, we affirm the judge's finding that Gilbert failed to

prove that he was, in fact, discharged by Sandy Fork. We disagree
with the assertion that Gilbert was faced with a "Hobson's choice"
of working under unsafe conditions or quitting. In Metric
Constructors, supra, the Commission concluded that "Metric's decision
that the men could either work under the unsafe conditions or have
their employment terminated was equivalent to discharging them for
engaging in protected activity." 6 FMSHRC at 229. The same is not
true here. The record supports the judge's finding that Gilbert could
have returned to work that afternoon on his regular shift. Had he
done so and had the conditions then extant necessitated the "Hobson's
choice" of working under demonstrably unsafe conditions or being fired
we would be faced with a different case.

Based on our examination of the record, we conclude that

substantial evidence supports the judge's finding that Gilbert was
not discharged but voluntarily gave up his job at a point in time
when he was not faced with a hazard justifying a refusal to work at
that time. We therefore affirm the judge's conclusion that a
violation of section 105(c)11) was not established.

                III.

    Dismissal of Gilbert's Individual Complaint

We further conclude that the judge erred in denying the

Secretary's motion to dismiss the complaint that Gilbert filed on his
own behalf. As noted, Gilbert's individual complaint was filed
pursuant to the last clause of Commission Procedural Rule 40(b)(n. 4
supra), permitting such actions where the Secretary fails to make any
determination as to whether a violation of section 105(c) has occurred
within the required 90-day period following the filing of the miner's
discrimination complaint.

The obvious intent of this procedural rule was to protect

miners from prejudicial delay by the Secretary in filing
discrimination complaints and to encourage the Secretary to meet his
statutory responsibilities under section 105(c) in a timely manner.
For a number of years, the Secretary voiced no opposition to the

Page 20

procedure set forth in Rule 40(b). Indeed, as the facts of this
case illustrate, the Secretary transmitted letters to complainants
in situations where his investigation exceeded the statute's 90-day
limit, informing complainants that they could file a private action
under Commission Rule 40(b). In this litigation, however, the
Secretary argues that Rule 40(b)'s authorization of a complaint
filed by a miner prior to the Secretary's making a determination
as to whether the discrimination has occurred conflicts with the
enforcement schemes set forth in section 105(c) of the Mine Act.
Oral Arg. Tr. 39-48. Upon re-examination, of the statute and our
procedural rule, we concur.

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Section 105(c) does not provide that complainants may file
complaints on their own behalf if the Secretary has not determined
whether a violation has.occurred within 90 days of the filing of the
complaint. To the contrary, section 105(c)(3) expressly provides
that the complainant may file his private action only after the
Secretary informs the complainant of his determination that a
violation has not occurred:

 Within 90 days of the receipt of a complaint
 filed under [section 105(c)(2)], the Secretary shall
 notify, in writing, the miner ... of his determination
 whether a violation has occurred. If the Secretary,
 upon investigation, determines that the provisions of
 [section 105(c)] have not been violated, the complainant
 shall have the right, within 30 days of the Secretary's
 determination, to file an action on his own behalf before
 the Commission, charging discrimination or interference
 in violation of [section 105(c)(1)].

30 U.S.C. $ 815(c)(3)(emphasis added).

Thus, the statute is clear and express concerning the filing

of discrimination complaints. The Secretary is required to
investigate all initial discrimination complaints under the Act
(30 U.S.C. $ 815(c)(2)); if the Secretary determines that the Act
has been violated, the Secretary prosecutes a discrimination complaint
on the complainant's behalf (id.); if the Secretary finds that the Act
was not violated, then the complainant may file a complaint on his own
behalf (30 U.S.C. $ 815(c)(3)).

Further, the Mine Act's legislative history is consistent

with the plain statutory language. S. Rep. No. 181, 95th Cong.,
1st Session 36 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624-25
(1978) ("Legis. Hist."). For example, the Senate Report emphasizes
that the investigatory time obligations placed on the Secretary by
section 105(c)(2) are not intended to be jurisdictional and that "the
complainant should not be prejudiced because of the failure of the
Government to meet its time obligations." Legis. Hist. 624. This
instruction suggests that what Congress had in mind in enacting
section 105(c)(2) was that an individual could file a discrimination
complaint with the Commission on his own behalf only upon the
Secretary's determination not to prosecute the complainant's claim.
Had Congress intended otherwise, it would not have focused upon the

Page 22

prejudice to the complainant because of secretarial inaction, as the
self-help remedy of the individual's filing his own complaint would
have been available.

Congress has established discrimination enforcement mechanisms

in other statutes different from that set forth in section 105(c) of
the Mine Act. For example, Title VII of the Civil Rights Act of 1964,
42 U.S.C. $ 2000e et seq. (1982), provides that where the government
has not determined within a prescribed period whether unlawful
employment

Page 23

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discrimination has occurred, the charging party is so notified
and may file his own complaint. 42 U.S.C. $ 2000e-5(f)(1).
More recently, in the Immigration Reform and Control Act of 1986,
Pub. L. 99-603, 100 Stat. 3359, Congress expressly provided that
where the government fails to determine within a specified period
whether unfair immigration-related employment discrimination
occurred, the charging person may file his own private action.
8 U.S.C.A. $ 1324b(d)(2)(West Supp. 1987). Hence, Congress has
enacted enforcement schemes permitting private actions where the
government fails to make the requisite determination of a charged
violation within a given period. However, by the express terms of
section 105(c) it chose not to do so in the Mine Act. We must
respect Congress' choice. See, e.g. UMWA v. Secretary of Labor,
5 FMSHRC 807, 810-16 (May 1983), aff'd mem. sub nom. UMWA v.
Donovan, 725 F.2d 126 (D.C. Cir. 1983)(table). See generally
Council of Southern Mtns. v. FMSHRC, 6 FMSHRC 206, 213 (February
1984), aff'd sub nom. Council of Southern Mtns. v. FMSHRC, 751 F.2d
1418 (D.C. Cir. 1985).

This Commission already has spoken strongly concerning the

importance of the Secretary's making determinations as to violations
of section 105(c) within the prescribed 90-day period. Secretary on
behalf of Hale v. 4.A Coal Company Inc., 8 FMSHRC 905 (June 1986).
As emphasized in Hale (8 FMSHRC at 908) and as noted above, the
legislative history indicates that while Congress intended that
the 90-day investigation period not be jurisdictional, it was to be
respected and followed by the Secretary. Legis. Hist. 624. Under
the Mine Act, the Secretary bears enforcement responsibility of
investigating all initial discrimination complaints. See Roland
v. Secretary of Labor, 7 FMSHRC 630, 634-36 (May 1985), aff'd mem.
sub nom. Roland v. FMSHRC, No. 85-1828 (lOth Cir. July 14, 1986).
That responsibility is not effectively discharged if the statutory
time periods are ignored. At oral argument, counsel for the Secretary
represented that the Secretary was undertaking administrative actions
to address the problem of investigative delay of discrimination
complaints. We welcome all efforts in this regard.

We are aware of potential problems when the Secretary's

investigation of initial discrimination complaints is delayed.
That concern notwithstanding, the approach suggested by our
colleagues usurps the Secretary's primary enforcement responsibility
under section 105(c) and cannot be squared with the plain structure
and language of that section. Review and redress of continued delays
by the Secretary in this crucial area of the Mine Act are more
appropriately the subjects of Congressional oversight.

Page 24

Accordingly, we hereby declare the clause in Commission

Procedural Rule 40(b) permitting the filing of individual actions
when the Secretary has not made a determination of violation within
90 days to be invalid. A Federal Register notice deleting this clause
will appear. Our action here applies prospectively and also to any
such individual

Page 25

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discrimination complaints pending presently before the Commission. 6/

                  IV.

              Conclusion

On the foregoing bases, we affirm on substantial evidence

grounds the judge's dismissal of the discrimination complaint filed by
the Secretary on behalf of Gilbert. We reverse the judge's denial of
the Secretary's motion to dismiss the complaint filed by Gilbert in
his own behalf.
Ford B. Ford, Chairman

               Richard V. Backley, Commissioner

                James A. Lastowka, Commissioner

6/ Individual complainants remain free to retain private counsel
at any time. However, in Maggard v. Chaney Creek Coal Co., etc.,
Nos. KENT 86-1-D, slip op. at 8-9, issued this date, we have followed
the decision by the United States Court of Appeals for the Fourth
Circuit in the absence of contrary judicial authority, disallowing
private counsel fees in Mine Act discrimination proceedings except
where a complainant has successfully prosecuted a section 105(c)(3)
private action following the Secretary's determination not to file a
complaint on the complainant's behalf. See Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 644 (4th Cir. 1987).

Page 26

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Commissioner Doyle and Commissioner Nelson, concurring in part and
dissenting in part:

We join in that part of the majority's decision affirming the
administrative law judge's dismissal of Mr. Gilbert's discrimination
claim. We respectfully dissent, however, from the decision to the
extent that it invalidates that portion of the Commission's Rule 40(b)
that provided claimants the right to bring their own action if the
Secretary of Labor failed to act within the statutory time period.
Consequently, we would affirm the judge's denial of the Secretary's
Motion to Dismiss the individual complaint filed by Mr. Gilbert.

When Mr. Gilbert filed his individual complaint with the
Commission, it appeared clear to all concerned that he had the
right to do so based on the Secretary's failure to determine, within
ninety days after his receipt of the complaint, whether a violation
had occurred. The Commission's position was articulated in its own
procedural Rule 40(b), which was promulgated in 1979, and provided:

 A complaint of discharge, discrimination or
 interference under section 105(c) of the Act,
 may be filed by the complaining miner,
 representative of miners, or applicant for
 employment if the Secretary determines that no
 violation has occurred, or if the Secretary fails
 to make a determination within 90 days after the
 miner complained to the Secretary.

29 C.F.R. $2700.40(b)(1986) (emphasis added).

That position was reaffirmed by the Commission as recently as June,
1986. Secretary on behalf of Hale v. 4-A Coal Company, Inc., 8 FMSHRC
905, 907, n. 3.

The Secretary's position was articulated in its letter of
November 15, 1985, to the complainant and in similar letters to
other complainants whose cases the Secretary had failed to determine
within ninety days, as follows:

 By the terms of the Act and the Federal Mine Safety
 and Health Review Commission's procedural rules, you
 have a right to file your own complaint with the
 Commission because the Secretary has not completed his
 consideration within 90 days. Should you desire to file
 a complaint of discrimination directly with the Commission,

Page 27

it should be addressed ... (emphasis added).

Page 28

~1341
Five weeks after receiving the Secretary's letter, Mr. Gilbert
followed the Commission's rule and the Secretary's advice and filed
his complaint with the Commission pursuant to section 105(c)(3) of
the Mine Act and Rule 40(b). Two months later, the Secretary, having
finally made a determination that a violation had occurred, filed his
section 105(c)(2) action. He then moved to dismiss Mr. Gilbert's
private action, a motion in which the operator did not join and which
the administrative law judge denied. Today the Commission has, at the
Secretary's urging, reversed the judge's decision and invalidated the
portion of Rule 40(b) that permitted a complainant to file his own
action if the Secretary failed to act within ninety days after a
complaint was filed with the Secretary.

The Secretary's argument to the Commission is twofold:
Gilbert's private action was based on an "implied" cause of action
and Rule 40(b) conflicts with the enforcement scheme of section
105(c). We find both of these arguments unpersuasive. The action
was not based on an implied cause of action but rather on an action
explicitly authorized by Rule 40(b). Further, we find no conflict
between Rule 40(b) and the enforcement scheme of section 105(c).
We believe the rule is a reasonable construction of the Mine Act
and see no reason to invalidate it.

The majority bases its decision to invalidate Rule 40(b) on

"the plain statutory language" of section 105(c) and states that
"the statute is clear and express ..." It should be noted that the
language that is today characterized as "clear and express" has now
been interpreted by the Commission in two different manners (with
its promulgation of Rule 40(b) in 1979 and its reaffirmation in 1986,
and today with its finding that the rule is without foundation) and
by the Secretary in at least three different manners (that a claimant
has the right to bring his own action because the Secretary has not
made a determination within ninety days, as set out in the Secretary's
letter to Mr. Gilbert, that a private right of action authorized by
Rule 40(b) must give way to the Secretary, once he determines that a
violation has occurred, as argued in the Secretary's brief to the
Commission, Brief for the Secretary of Labor at 11, and that the
Secretary has exclusive jurisdiction ad infinitum until he makes a
determination, as asserted by the Secretary at oral argument, Record
at 72. These various interpretations provide ample evidence that the
position enunciated today is not unambiguously expressed in the
statute.

While we are in agreement with the majority that section 105(c)
does not expressly provide for the filing of a private action by a

Page 29

complainant when the Secretary fails to make a determination within
ninety days, we disagree that section 105(c)(3) expressly provides
that private actions can be maintained only after the Secretary
informs the complainant of his determination that a violation has
not occurred. (In fact, the statutory language is "[i]f the Secretary
..."; it is not "only if the Secretary ..."). We find the statute to
be silent as to the consequences of the Secretary's failure to make a
determination within the ninety day period. This view is apparently
shared by the Secretary who, in support

Page 30

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of his motion' stated that the Mine Act "is silent as to the
implications of any delays by the Secretary in completing his
investigation within the statutorily prescribed time frame."
Secretary's Memorandum in Support of Motion to Dismiss at 4.

While the unambiguously expressed intent of Congress must be

given effect, it is a well established rule that where the statute
is either silent or ambiguous, an agency has the power to formulate
policy and make rules to fill any gap left, implicitly or explicitly,
by Congress. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 843 (1984). The Commission, in promulgating
Rule 40(b) more than eight years ago, filled the gap left by Congress
by providing miners with the right to bring their own action where
the Secretary failed to act within the statutory period. This was
not only a reasonable construction of the statute, but one that
effectuated Congress' intent that Mine Act discrimination complaints
be processed expeditiously.

The purpose of section 105(c) of the Mine Act is to afford

protection to miners who have been discriminated against in the
exercise of their statutory rights. It is clear from the language
of section 105(c) that the timely institution, investigation and
resolution of discrimination complaints were an important part of
Congress' plan with respect to these complaints. By Congressional
direction, complaints are to be filed with the Secretary within
sixty days after the alleged violation; within fifteen days hereafter
the Secretary is to commence an investigation; upon application of
the Secretary in certain circumstances the Commission, on an expedited
basis, is to order temporary reinstatement; and within 90 days of the
receipt of a complaint the Secretary is required to notify the miner
of his determination whether a violation has occurred. In those
instances where the Secretary concludes upon investigation that a
violation has occurred, he is required to immediately file a complaint
with the Commission. Where the Secretary makes a negative
determination, the miner has the right to pursue his own action with
the Commission, but must do so by filing his complaint within thirty
days of the Secretary's determination. It is apparent that Congress
envisioned prompt action aimed toward rapid resolution of
discrimination claims. The Commission's reinterpretation of the
statute and consequent invalidation of Rule 40(b) at this time
endorses a change in policy that is inconsistent with the mandate of
Congress and clearly frustrates its intent.

There are a number of reasons (from both the miner's and the
operator's point of view) why cases should not be allowed to

Page 31

languish, awaiting a determination by the Secretary. Memories fade
and witnesses relocate. Cases can be more easily resolved before
positions harden and large sums of money are involved. The miner may
be unemployed and without other means of support or he may find his
case ultimately dismissed if the operator can show that he has been
prejudiced by the delay. Hale, 8 FMSHRC at 908. The operator may
have been required to temporarily reinstate a miner whose claim, while
not frivolous, is ultimately found to be without merit or he may be
faced with a damage award that includes

Page 32

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years of back pay rather than months. It is no answer to assert,
as the Secretary did at oral argument, that excessive or chronic
delays can be remedied by Congressional oversight of the Secretary's
investigation and determination process. We doubt that Congress
intended the ninety day determination requirement set forth in
section 105(c)(3) to serve only as a yardstick against which
Congress could measure the Secretary's performance in oversight
hearings. Yet the majority's decision leaves miners and mine
operators with no other source of relief from delay by the
Secretary except to write to their Congressmen.

While finding the statute "clear and express." the majority

nevertheless turns to legislative history and bases its decision
in part on the section of the history that indicates that the
complainant should not be prejudiced because of the government's
failure to act in a timely fashion. They opine that this instruction
"suggests" that Congress intended individual filing only upon a
negative determination by the Secretary, otherwise Congress would
not have focused upon the possible prejudice to the complainant
arising from delay by the Secretary. This interpretation is
somewhat at odds with the position recently expressed by the
Commission when it found that due process considerations might
necessitate dismissal of a claim where the operator shows material
legal prejudice attributable to delay by the Secretary. Hale,
8 FMSHRC at 908. In any event, we do not read the legislative
history to countenance the many and extended delays that have
occurred over the years.

The majority notes that Title VII of the Civil Rights Act of

1964, 42 U.S.C. $2000e et seq (1982), specifically grants the
charging party the right to bring his own action in the event that
the Equal Employment Opportunity Commission (the "EEOC") fails to
act within a certain period of time. Title VII, however, contains
no language requiring the EEOC to act within a specified period.
Rather, it indicates that a civil action may be brought by the EEOC
under certain circumstances. If the EEOC fails to act within a
specified period. the complainant is to be so notified and, if he
chooses to bring his own action, the EEOC's further involvement is
limited to the status of an intervenor, at the court's discretion.
We do not find it remarkable that Congress included express language
permitting initiation of a private action where the investigatory
agency's action is permissive and did not include such language where
the agency's responsibilities are mandatory.

While the more recently enacted Immigration Reform and Control

Page 33

Act of 1986, Pub. L. 99-603, 100 Stat. 3359, (the "Immigration Act")
contains both mandatory language with respect to the time in which
the Special Counsel must act and language giving the charging party
the right to bring an action if the Counsel fails to act within the
required time period, we suspect that this additional language
represents a recognition by Congress that at least one investigatory
agency now considers time requirements "not as mandatory but rather
as 'directory in nature.'" Brock v. Roadway Express, Inc., 55 U.S.L.W.
4530, 4534 (U.S. April 22, 1987) (No. 85-1530). We find it highly
unlikely that Congress intended

Page 34

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that discrimination complaints filed under the Mine Act should
be prosecuted less expeditiously than those filed under the
Immigration Act.

 In sum, we find no basis in either the Act or the legislative

history to extend the Secretary's exclusive jurisdiction beyond the
ninety days in which he is mandated to act and would therefore urge
the retention of Rule 40(b), which represented a reasonable
interpretation by the Commission of section 105(c). Accordingly, we
would affirm the administrative law judge's denial of the Secretary's
Motion to Dismiss.

               Joyce A. Doyle, Commissioner

               L. Clair Nelson, Commissioner

Distribution

Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.0. Box 360
Hazard, Kentucky 41701

Mary Griffin, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

William A. Hayes, Esq.
P.0. Box 817
Middlesboro, Kentucky 40965

Michael T. Heenan, Esq.
Ronald E. Meisburg, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041