Secretary of Labor o/b/o DeLisio v. Mathies Coal Company

Plain-English summary

The Commission reviewed a request from the Secretary of Labor to clarify the remedy in an ALJ decision involving Mathies Coal's interference with Joseph G. DeLisio's right to accompany federal inspectors. The ALJ had ordered Mathies to let DeLisio drive his private car to the mine portal or provide company transportation underground. The Commission held that the Secretary's request was effectively a timely petition for discretionary review and that the Commission had jurisdiction to act. It remanded the matter to the ALJ to rule on the requested clarification, with further Commission review available after that ruling.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(1), 30 U.S.C. § 823(d)(1), 30 U.S.C. § 823(d)(1)(A)(i), 29 C.F.R. § 2700.65, and 29 C.F.R. § 2700.65(c)
• Outcome: The remedy clarification request was construed as a timely review petition and remanded to the ALJ.
• Key point: After an ALJ decision is released, a request for substantive clarification or modification must be directed to the Commission.

Full text (FMSHRC public release)

FMSHRC-WDC
February 3, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JOSEPH G. DeLISIO, JR.

  v.               Docket No. PENN 86-83-D

MATHIES COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                ORDER

BY THE COMMISSION:

In this discrimination proceeding arising under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982), counsel for the Secretary of Labor has requested Commission
Administrative Law Judge George A. Koutras to clarify the remedial
relief awarded in his decision of November 21, 1986. 8 FMSHRC 1772
(November 1986)(A.J.). We remand the matter to the judge to rule
upon the merits of the Secretary's request.

In his decision, Judge Koutras concluded that Mathies Coal

Company ("Mathies") violated section 105(c)(1) of the Mine Act,
30 U.S.C. § 815(c)(1), by unlawfully interfering with Joseph G.
DeLisio's right as a representative of miners to accompany federal
inspectors during inspection of the mine. To remedy the violation,
the Judge ordered Mathies to permit DeLisio to drive his private
automobile to the mine portal where inspections normally begin or,
in the alternative, provide DeLisio with company transportation
underground to that location.

Neither party sought review of the judge's decision by filing

a petition for discretionary review with the Commission under
section 113(d)(1)(A)(i) of the Act. 30 U.S.C. § 823(d)(1)(A)(i).
However, on December 22, 1986, the judge received from counsel for
the Secretary a document entitled "Request for Clarification." The
Secretary asserted that Mathies had refused DeLisio the use of his
private automobile and that DeLisio cannot reach, in a timely manner,
the portal where inspections begin by using company-provided
underground transportation. The Secretary requested the judge to
clarify or amend the relief previously ordered by requiring Mathies
to provide DeLisio with transportation that will allow him to reach
in 20 minutes or less the portal where the inspections begin.

Because he had issued his final decision in this matter under

29 C.F.R. § 2700.65, the judge forwarded the Secretary's request to
the Commission. By order dated December 30, 1986, we stayed the
running of the period within which the judge's decision would become
a final order of the Commission and directed Mathies to respond to
the Secretary's request. Mathies has filed a response and contends
that the relief ordered originally by the judge is "final and beyond
review" and that the Commission lacks jurisdiction to entertain the
Secretary's request.

When the judge's decision was released, his jurisdiction

terminated and any subsequent request for substantive review or
modification must be directed to the Commission, not the judge.
29 C.F.R. § 2700.65(c). Contrary to Mathies' assertions, a judge's
decision does not become a final order of the Commission until 40 days
after it is issued (30 U.S.C. § 823(d)(1)) and we have jurisdiction to
act upon the Secretary's request.

We construe the Secretary's Request for Clarification as

constituting, in effect, a timely petition for discretionary review
of the relief ordered by the judge. Gravely v. Ranger Fuel Co.,
6 FMSHRC 799 n. 1 (April 1984). Under the anti-discrimination
provisions of the Mine Act, the Commission has broad authority, "as
the Commission deems appropriate," to fashion appropriate remedies
to abate violations of section 105(c)(1). See Brock v. Metric
Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985). The
purpose of such remedies is to eradicate the existence and effect of
the unlawful discrimination to the greatest extent possible. Where,
as here, a party timely disputes the efficacy or meaning of the
remedy and requests that the judgment be clarified or amended, the
request may be entertained by the Commission. Cf Fed. R. Civ. P. 59(e).

This matter is remanded to the judge to rule upon the request
for clarification. The judge may conduct such expedited proceedings
as may be necessary for purposes of his ruling. Any party
dissatisfied with the judge's further ruling may timely petition the
Commission for review of the decision as clarified or amended.

              Ford B. Ford, Chairman


              Richard V. Backley, Commissioner


              Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner


              L. Clair Nelson, Commissioner

Distribution

Carl H. Hellerstedt, Jr., Esq.
Volk, Robertson, Frankovitch,
Anetakis & Hellerstedt
Three Gateway Center
Pittsburgh, Pennsylvania 15222

Linda M. Henry, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104

Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041