Sandy Fork Mining Company, Inc.

Plain-English summary

Orville Sparks alleged that Sandy Fork Mining Company discharged him in violation of section 105(c)(1) of the Mine Act. After the Secretary had not completed its investigation, Sparks filed a private complaint with the Commission under Commission Rule 40(b), and the Secretary later filed a separate complaint on his behalf after determining that a violation had occurred. Judge Avram Weisberger held that the Commission's ruling in Gilbert v. Sandy Fork Mining required dismissal of Sparks's private complaint because the private right of action applied only when the Secretary made a negative determination. The judge dismissed Docket No. KENT 87-181-D, while the release also identifies the Secretary's related Docket No. KENT 87-189-D.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1), 30 U.S.C. § 815(c)(2), and 29 C.F.R. § 2700.40(b)
• Outcome: Sparks's private discrimination complaint was dismissed.
• Key point: A private Mine Act discrimination action was unavailable while the Secretary's investigation was incomplete and after the Secretary pursued its own complaint based on a violation determination.

Full text (FMSHRC public release)

CCASE:
ORVILLE V. SANDY MINIG
DDATE:
19870831
TTEXT:

Page 2

~1530

        Federal Mine Safety and Health Review Commission
              Office of Administrative Law Judges

ORVILLE SPARKS, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. KENT 87-181-D

SANDY FORK MINING COMPANY, BARB CD 87-18
INC.,
RESPONDENT No. 10 Mine

SECRETARY OF LABOR DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ON BEHALF OF Docket No. KENT 87-189-D
ORVILLE SPARKS,
COMPLAINANT BARB CD 87-18
v.
No. 10 Mine
SANDY FORK MINING COMPANY,
INC.,
RESPONDENT

                         ORDER OF DISMISSAL

 On January 29, 1987, Orville Sparks filed a complaint, with

the Mine Safety and Health Administration, alleging that on
December 2, 1986, he had been discharged by Sandy Fork Mining
Company, Inc., in violation of Section 105(c)(1) of the Federal
Mine Safety and Health Act of 1977. The Secretary, by letter
dated April 29, 1987, advised Mr. Sparks that the investigation
of his complaint had not been completed, and that it had not yet
been determined whether or not a violation of Section 105(c) had
occurred. On June 12, 1987, Mr. Sparks filed his own complaint,
with the Commission, pursuant to Commission Rule 40(b), 29 C.F.R.
2700.40(b). Subsequently, on June 25, 1987, the Secretary file
his own complaint with the Commission on behalf of Mr. Sparks
against Sandy Fork Mining Company, Inc. under Section 105(c)(2)
of the Act. On July 23, 1987, the Secretary filed an amendment to
the complaint. On July 17, 1987, the Secretary filed a Motion to
Dismiss arguing that Mr. Sparks' complainant, Docket No. KENT
87-181-D, should be dismissed. In its Motion, the Secretary
argued that the Federal Mine Safety Act, created a private right
of action only in situations where the Secretary reaches a
negative determination regarding the miner's complaint. The
Secretary further argued that once it determines that a violation
of the Act has occurred, the Commission no longer has
jurisdiction over the private cause of action.

Page 3

~1531
On August 25, 1987, the Commission, in Gilbert v. Sandy Fork
Mining Co., Inc. (Slip. Op. August 25, 1987), in essence,
sustained the position of the Secretary. Based on Gilbert, supra,
as applied to the facts herein, the complaint of Mr. Sparks must be
dismissed.

    Accordingly, Docket No. KENT 87-181-D is DISMISSED.

                              Avram Weisberger
                              Administrative Law Judge