Flaget Fuels, Inc.

Plain-English summary

Thomas J. McIntosh alleged that Flaget Fuels discharged him after he refused to operate a bulldozer he reasonably and in good faith believed was unsafe and after he raised safety complaints. Flaget asked the judge to dismiss the complaint as untimely. Judge George A. Koutras found that the Commission's rules in effect at the time imposed no filing deadline for a miner's complaint after the Secretary found no violation, and that McIntosh's filing delay was slight and caused no shown prejudice. He denied the dismissal request and directed that the case be scheduled for a hearing on the merits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c); 29 C.F.R. §§ 2700.40 and 2700.41
• Outcome: The request to dismiss was denied, and the discrimination case was set for a merits hearing.
• Key point: Under the Commission rules then in effect, a miner's discrimination complaint was not dismissed solely because of the short delay alleged here.

Full text (FMSHRC public release)

CCASE:
THOMAS J. MCINTOSH V. FLAGET FUELS
DDATE:
19900504
TTEXT:

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

THOMAS J. MCINTOSH, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 90-113-D
v. MSHA Case No. BARB CD 90-06

FLAGET FUELS, INC., No. 1 Surface
RESPONDENT

           ORDER DENYING RESPONDENT'S REQUEST
                  TO DISMISS COMPLAINT

                 Statement of the Case

 This proceeding concerns a complaint of discrimination filed

by the complainant against the respondent pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977. The
complainant alleges that he was discharged by the respondent from
his employment as a bulldozer operator on or about December 8,
1989, because of his refusal to operate a bulldozer he reasonably
and in good faith believed to be unsafe and because he had voiced
safety complaints about said bulldozer to the respondent's
vice-president.

 The respondent has filed an answer to the complaint denying

that it discharged the complainant or discriminated against him
in violation of the Act. With regard to the complainant's
jurisdictional pleading at paragraph three (3) of his complaint,
the respondent takes the position that the complaint is untimely
and states that it "specifically controverts jurisdiction of the
Commission for failure to meet the statutorily prescribed filing
deadline." Respondent requests that the complaint be dismissed
with prejudice.

 Although the Act provides that a discrimination complaint

must be filed within 30 days after receipt of the Secretary's
written determination that no violation has occurred, and the
Commission's proposed rule changes as published in the Federal
Register on February 12, 1990, 55 Fed. Reg. 4853-4866, will
include the same statutory time limit, under the Commission's
present rules of procedure there is no time limit for filing such
a complaint. The applicable present rules provide as follows:

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2700.40 Who may file.

      (a) The Secretary. A complaint of discharge,
      discrimination or interference under section 105(c) of
      the Act, 30 U.S.C.   815(c), shall be filed by the
      Secretary after an investigation under section
      105(c)(2) of the Act, if he finds that a violation of
      section 105(c)(1) of the Act has occurred.

      (b) Miner, representative, or applicant for employment.
      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.

        2700.41 When to file.

      (a) The Secretary. A complaint of discharge
      discrimination or interference shall be filed by the
      Secretary within 30 days after his written
      determination that a violation has occurred.

      (b) Miner, representative, or applicant for employment.
      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.

 The pleadings reflect that the complainant timely filed his

complaint with MSHA on December 11, 1989. By letter dated January
26, 1990, and received by the complainant on February 1, 1990,
MSHA advised the complainant that based on a review of the
information gathered during its investigation of his complaint,
it concluded that a violation of section 105(c) of the Act had
not occurred. The complainant then filed the instant complaint
with the Commission by letter and enclosure dated March 5, 1990,
and the complaint was docketed on March 9, 1990.

 It has been held that the time limitations found in section

105(c) of the Act are not jurisdictional. See: Christian v. South
Hopkins Coal Company, 1 FMSHRC 126, 134-136 (April 1979); Bennett
v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 (June
1981); Secretary v. 4-A Coal Company, Inc., 8 FMSHRC 905 (June,
1986); Buelke v. Thunder Basin Coal Company, 11 FMSHRC 240
(February, 1989).

 In the following cases, the Commission held that the failure

by miners to timely file discrimination complaints for time
periods ranging from 60 days to 7 months after the events
complained of should not be barred, and the complaints were

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permitted. See: Gary M. Bennett v. Kaiser Aluminum & Chemical
Corp., 2 MSHC 424 (1981); Charles J. Frazier v. Morrison-Knudsen,
Inc., 2 MSHC 2057 (1981); Rex Allen v. UNC Mining & Milling, 2
MSHC 2089 (1981); Richard C. Johnston v. Olga Coal Co., 2 MSHC
2247 (1981).

 The respondent makes no claim that it has been prejudiced by

the complainant's slight delay in filing his complaint with the
Commission after receiving notification from MSHA that it did not
intend to pursue his case further, and I cannot conclude that any
such delay has deprived the respondent of a fair and meaningful
opportunity to defend against the claim of alleged
discrimination.

                          ORDER

 In view of the foregoing, the respondent's request to

dismiss the complaint IS DENIED, and this case will be scheduled
for a hearing on the merits in the near future at a time and
place convenient to the parties.

                                  George A. Koutras
                                  Administrative Law Judge