Chelle Energy, Inc., and Clyde Boyd

Plain-English summary

Brian K. Moore brought a Mine Act discrimination complaint against Chelle Energy and Clyde Boyd. After the hearing was rescheduled several times, Moore did not appear at the scheduled hearing and contacted the Commission only the afternoon before it, saying he could not get time off work and lacked transportation. Judge Avram Weisberger found that Moore had enough time to arrange his affairs and dismissed the case under Commission Rule 66(l). The order resolved the proceeding on attendance grounds and did not decide the underlying discrimination allegations.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.66(l).
• Outcome: The discrimination case was dismissed after the complainant failed to attend the scheduled hearing.
• Key point: A party’s failure to attend a scheduled hearing may support dismissal when the party had sufficient time to arrange attendance.

Full text (FMSHRC public release)

[DOCID: f:kt992.wais]

CHELLE ENERGY, INC., AND CLYDE BOYD
July 23, 1999
KENT 99-2-D

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                      July 23, 1999

BRIAN K. MOORE : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. KENT 99-2-D
:
CHELLE ENERGY, INC., and : PIKE CD 98-09
CLYDE BOYD, :
Respondent :
: Mine No. 1
: Mine ID 15-17881

                    ORDER OF DISMISSAL

Appearances: Regina Triplett, Esq., Chris Ratliff Law Offices,
Pikeville, Kentucky, for Respondent Chelle Energy,
Incorporated;
Thomas M. Smith, Esq., Prestonsburg, Kentucky, for
Respondent Clyde Boyd.

Before: Judge Weisberger

 This case is before me based on a Complaint filed by Brian

K. Moore alleging that Chelle Energy, Inc., and Clyde Boyd
unlawfully discriminated against him in violation of
Section 105(c) of the Federal Mine Safety and Health Act of 1977.
On February 1, 1999, an order was issued scheduling this matter
for hearing on April 13-15, 1999. Moore subsequently retained
counsel, and the hearing was rescheduled, at the request of
counsel, for May 12-13, 1999.[1] Respondents subsequently moved
to continue the hearing, and after the presentation of arguments
by all Parties in a telephone conference call on April 28, 1999,
the motion was granted. On April 30, 1999, an order was issued
rescheduling the hearing for July 7-8, 1999, to commence at 9:00
a.m, in Louisa, Kentucky.

 On July 7, 1999, counsel for Respondents were assembled at

9:00 a.m., at the designated site. Moore did not appear, nor did
he contact my office or the courthouse where the case was
scheduled to be heard. I contacted my office at 9:10 a.m., and
spoke with one of the Commission's secretaries who informed me
that at 4:30 p.m., July 6, she received a telephone call from a
person who identified himself as Brian K. Moore, who told her
that he was having problems with his job, that he was not being
allowed to take off to attend the hearing, and that he wanted the
hearing continued. The secretary said she advised him that I was
in transit. She also furnished him with the address of the
courthouse in Louisa, Kentucky, and the phone number of the court
clerk. The secretary said she advised Moore to go to the
hearing. The secretary told me that Moore said that he had no
way of getting there. The secretary told me that she informed
him to make sure that he shows up at the hearing.

 At the hearing, Respondents made a Motion to Dismiss based

on Moore's failure to appear at the hearing.

 29 C.F.R. � 2700.66(l) provides as follows: "If a party

fails to attend a scheduled hearing, the Judge, where
appropriate, may find the party in default or dismiss the
proceeding without issuing an order to show cause." The order
setting this case for hearing was issued on April 30, 1999.
Thus, Moore was afforded sufficient time to arrange his affairs
so he could attend the hearing. Should this matter be continued,
there is no certainty that Moore would be able to arrange
transportation and appear at a hearing. Moore had to make the
choice between working or attending the hearing and pursuing his
case, and chose to work. Further, as a result of his not
contacting the Commission until 4:30 p.m., the day prior to the
hearing, the Commission incurred the needless expenses of
transportation and per diem of the undersigned, as well as costs
of a reporter. Also, Respondents incurred loss of time in
appearing at the hearing.

 Therefore, for all the above reasons, and pursuant to

section 2700.66(l), supra, the Motion to Dismiss is granted.

                          ORDER

 It is ORDERED that this case be DISMISSED.


                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Mr. Brian K. Moore, P. O. Box 112, Ivel, KY 41642
(Certified Mail)

Regena Triplett, Esq., Chris Ratliff Law Offices,
P. O. Box 1379, Pikeville, KY 41502 (Certified Mail)

Thomas M. Smith, Esq., P.O. Box 246, 26 Earl Street,
Prestonsburg, KY 41653 (Certified Mail)

dcp

FOOTNOTES

 [1]:/ Moore's counsel subsequently filed a Motion to

Withdraw as counsel, and the motion was granted in an order
issued April 21, 1999.