Black Streak Mining

Plain-English summary

John Dixon Hacker filed a discrimination complaint against Black Streak Mining after an injury and the end of his employment. He alleged that he had reported mine conditions to an MSHA inspector and was later told that he no longer had a job. MSHA declined to bring a discrimination case, so Hacker filed his own complaint with the Commission. Black Streak Mining did not answer after being ordered to do so, and Judge George A. Koutras ordered it to show cause why it should not be held in default and why summary judgment should not be entered.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 2700.40(b), 2700.42, 2700.43, and 2700.63; 30 U.S.C. § 815(c).
• Outcome: Black Streak Mining was ordered to explain its failure to answer and to respond within 30 days.
• Key point: A mine operator that does not answer a properly served discrimination complaint or comply with an answer order may face default proceedings.

Full text (FMSHRC public release)

Page 2

~464
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

JOHN DIXON HACKER, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 89-1-D
v. MSHA Case No. BARB CD 88-57

BLACK STREAK MINING,
RESPONDENT

                  ORDER TO SHOW CAUSE

                 Statement of the Case

 This proceeding concerns a complaint of discrimination filed

by the complainant against the respondent pursuant to section
105(c) of the Federal Mine Safety and Health Act of 1977. The
official file reflects that Mr. Hacker filed his complaint on
August 15, 1988, with the Secretary of Labor, Mine Safety and
Health Administration (MSHA) District 7 Field Office. The
complaint states as follows:

      At the end of our shift I ride the left outside. On
      7/25/88 while riding the belt to the surface I observed
      a rock fall on the belt and where the fall was the belt
      was cribbed on both sides. When I jumped off the belt I
      hit one of the cribs and it threw me back into the belt
      structure. As of this date I have received no workman
      compensation. I have been told that I no longer have a
      job at this company.

      I want my job back with backpay. Also I want the
      workman's compensation due me and all my medical bills
      paid.

 The complaint states that Mr. Hacker was employed by the

respondent as a Belt Head Man at a salary of $6 an hour, based on
a 40-hour work week. His overtime rate of pay is shown as $9 an
hour, and that he worked 8 hours of overtime each week during the
12-month period preceding the date of his complaint. The
complaint shows that Mr. Darrell Middleton is the

Page 3

~465
President of the respondent company, and that Mr. Wendell
Middleton is the Vice-President.

 In a statement given to an MSHA special investigator on

August 19, 1988, in the course of an investigation of his
complaint, Mr. Hacker stated that he began his employment with
the respondent in October, 1987, and that Mr. Wendell Middleton
instructed him to ride the belt into the mine to his work
station, while the rest of his crew rode the scoop. Mr. Hacker
stated further that while it was illegal to ride the belt, he
believed that if he complained, "I wouldn't have a job." Mr.
Hacker stated that he also rode the belt out of the mine at the
end of his shift because it was not practical for him to crawl to
the section and ride the scoop out.

 Mr. Hacker stated that approximately a week prior to his

injury on July 25, 1988, MSHA Inspector Chalk Myers, was in the
mine, and that he (Hacker) told Mr. Myers that he rode the belt
into the mine, and although the belt had a stop cord, it did not
work. Mr. Hacker stated further that he also informed Mr. Myers
that at various times other miners also rode the belt, and that
no one preshifted the area where he worked alone. Mr. Hacker
stated that Inspector Myers "cited several violations to the
company." Mr. Hacker stated that Inspector Myers "wanted me to
call the face and have the No. 2 belt shut down so he could make
some electrical checks, but they wouldn't do it."

 Mr. Hacker stated that on the morning of July 25, 1988, when

he rode the belt into the mine, he observed rock falling on the
No. 1 belt, and when he rode the belt out he observed a large
rock fall across the belt, and in order to avoid the rock, he
jumped off the belt and struck a crib which was adjacent to the
belt. When he later left the mine, he realized he was injured and
went to a hospital where he was x-rayed and given a shot and told
to stay off work 3 days. Two days later he was admitted to the
Pineville, Kentucky, hospital for 9 days.

 Mr. Hacker stated that he sent doctor's excuses to Mr.

Middleton through another miner, and that his wife telephoned Mr.
Middleton from the hospital, but that Mr. Middleton informed his
wife that when he (Hacker) left the mine on July 25, he was
"o.k." and that no accident had occurred.

 Mr. Hacker stated that when he subsequently called Mr.

Wendell Middleton on August 16, 1988, to inquire if he still had
his job, Mr. Middleton informed him that as far as

Page 4

~466
he was concerned, Mr. Hacker had quit his job. Mr. Hacker stated
that when he attempted to tell Mr. Middleton what had happened to
him, Mr. Middleton would not listen to him and that "he told me
to sue him."

 By letter dated September 15, 1988, MSHA advised Mr. Hacker

that it had investigated his complaint, and after a review of the
information gathered during the investigation, made a
determination that a violation of section 105(c) of the Act did
not occur. Mr. Hacker was advised of his right to pursue the
matter further by filing a complaint on his own behalf with the
Commission within 30 days of MSHA's notification letter.

 By letter dated September 26, 1988, Mr. Hacker filed his pro

se complaint with the Commission, and it was received and
docketed on October 4, 1988. His letter states in pertinent part
as follows:

      I have lost my job due to an injury that I received
      while being employed by Black Streak Mining. I have
      filed a workmen's comp. claim. I have yet to receive
      workmen's comp. or anything due to this injury. I want
      to know from you all is it right to lose your job while
      under a doctor care? I have doctor's statements and
      x-rays due to this condition, and I also have witnesses
      stating verification of getting treated by a doctor at
      the emergency room in Pineville at the hospital.

 In addition to his complaint letter, Mr. Hacker submitted

copies of his prior complaint statements made to MSHA, a copy of
MSHA's letter of September 15, 1988, rejecting his complaint, and
copies of certain hospital records incident to certain treatment
he received on July 26 and August 4, 1988. Mr. Hacker
subsequently submitted a letter to the Commission on October 21,
1988, stating that a copy of his complaint had been served on the
respondent by certified mail, and he included the original postal
service certified mailing receipt which reflects that it was
received by the respondent on October 12, 1988.

 On December 27, 1988, the Commission's Chief Administrative

Law Judge Paul Merlin issued an order requiring the respondent to
file an answer to Mr. Hacker's complaint, with the Commission
within 30 days. The respondent was advised that if it did not
file an answer it would be assumed that it has admitted the
alleged acts of discrimination and that a

Page 5

~467
default judgment would be entered against the respondent granting
Mr. Hacker any relief to which he may be entitled. The postal
service certified mailing receipt reflects that the respondent
received Judge Merlin's Order on January 7, 1989. However, the
respondent has not complied with the order, and has not filed an
answer to Mr. Hacker's complaint. Nor has it filed a response to
Judge Merlin's order directing it to file an answer.

                      Discussion

 The Commission's rules governing discrimination complaints

filed pursuant to section 105(c) of the Act are found in Part
2700, Title 29, Code of Federal Regulations. Rule 40(b), 29
C.F.R. 2700.40(b), provides as follows:

      (b) * * * A complaint of discharge, discrimination or
      interference under section 105(c) of the Act, may be
      filed by the complainant miner, representative of
      miners, or applicant for employment if the Secretary
      determines that no violation has occurred, * * * .

 Commission Rule 42, 29 C.F.R.     2700.42, provides as

follows:

      A complaint of discharge, discrimination or
      interference shall include a short and plain statement
      of the facts, setting forth the alleged discharge,
      discrimination or interference, and a statement of the
      relief requested.

 Commission Rule 43, 29 C.F.R.   2700.43 provides that within

30 days after service of a complaint filed by the complaining
miner, the respondent mine operator shall file an answer.

 The Commission rule governing summary disposition of any

proceeding filed pursuant to its rules is Rule 63, 29 C.F.R.
2700.63, and it provides as follows:

      (a) * * * When a party fails to comply with an order of
      a judge or these rules, an order to show cause shall be
      directed to the party before the entry of any order of
      default or dismissal.

 The pleadings in this case, including the complaint and

information supplied by Mr. Hacker in support of his claim of

Page 6

~468
discrimination, reflect that his employment with the respondent
was terminated on or about August 16, 1988. The respondent
apparently takes the position that Mr. Hacker quit his job, and
Mr. Hacker asserts that he was unable to return to work because
of an alleged injury suffered when he jumped off a moving belt to
avoid a falling rock, and that when he attempted to explain the
circumstances of his failure to return to work, the respondent
took the position that no accident or injury occurred, that Mr.
Hacker quit his job, and that if Mr. Hacker wanted his job back,
respondent invited him to sue.

 Although Mr. Hacker's claim for workmen's compensation as a

result of his alleged job-related injury, does not on its face
present a viable discrimination complaint within the Commission's
jurisdiction, his complaint does raise an inference that his job
was terminated because of his informing an MSHA inspector
approximately a week prior to his injury that he was instructed
to ride the belt to his work place by the respondent's
vice-president, and that riding the belt was illegal. Mr. Hacker
purportedly informed the inspector that riding the belt was
illegal, that the belt stop-cord was inoperative, and that he
worked alone and his work area was not preshifted. According to
the complaint, after Mr. Hacker's conversation with the
inspector, several violations were served on the respondent, and
there is a inference that these asserted violations were related
to his riding the belt, the defective stop-cord, and the failure
to preshift his work area. In these circumstances, there is a
further inference that Mr. Hacker's termination may have resulted
from his conversation with the inspector, and the asserted
violations which followed. Since a miner has a protected right to
bring any alleged violative mine conditions to the attention of
an inspector, he may not be discriminated against by the
respondent for exercising this right, and if the respondent
terminated him for this reason, Mr. Hacker has established a
prima facie complaint of discrimination. At this stage of the
proceeding, and in view of the respondent's failure to file an
answer, the complaint stands unrebutted.

 The record in this case reflects that the respondent has

failed to file an answer to the complaint as required by
Commission Rule 29 C.F.R. 2700.43, and that it has also failed
to respond or comply with Judge Merlin's order directing it to
file an answer.

Page 7

~469
ORDER

 In view of the failure by the respondent to comply with the

Commission's rule requiring it to file an answer to the
complaint, and in view of its further failure to respond to Judge
Merlin's Order, the respondent IS ORDERED TO SHOW CAUSE, that is,
to explain or state why it should not be held in default and a
summary judgment entered against it finding that it has
discriminated against Mr. Hacker in violation of section 105(c)
of the Act, and granting the relief requested by Mr. Hacker.

 The respondent IS FURTHER ORDERED to file its response to

this order within thirty (30) days of its receipt.

                             George A. Koutras
                             Administrative Law Judge