Sandy Fork Mining Company, Inc. (ALJ decision, August 31, 1987)

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:

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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.

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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