Mineral Recovery Specialists, Inc.

Plain-English summary

Thomas P. Dye alleged that Mineral Recovery Specialists did not hire him as a permanent employee because he insisted that repaired equipment be fully safety-tested before it returned to service. The ALJ explained that the case concerned protected safety activity under the Mine Act, outlined the evidence Dye would need to present, and described the company’s possible defenses. The order directed the company to answer by September 20, 2002, and required the parties to confer about settlement and later contact the Judge about the case status and hearing dates.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c); 30 U.S.C. § 815(c)(3); 29 C.F.R. § 2700.40
• Outcome: No merits ruling was entered; the order set an answer deadline and settlement and status-conference steps.
• Key point: A miner’s safety complaint or refusal to perform work reasonably believed hazardous may qualify as protected activity in a Mine Act discrimination proceeding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVAR D #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                                    September 6, 2002

THOMAS P. DYE II, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 2002-408-DM
: RM MD 02-11
:
v. : Mine I.D. 05-01732
: Cotter Mill
MINERAL RECOVERY SPECIALISTS, INC., :
Respondent :

                                PREHEARING ORDER

    This proceeding was brought by Thomas P. Dye against Mineral Recovery Specialists,

Inc., (“MRSI”) under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (“Mine Act”) and 29 C.F.R.§ 2700.40 et seq. The complaint alleges, in part,
that MRSI violated section 105(c) of the Mine Act when it did not hire Dye as a permanent
employee because he insisted that a recently repaired piece of equipment be fully safety-tested
before it was put back into service. MRSI has retained counsel who states that he will be filing a
more complete response to
Mr. Dye’s complaint. Section 105(c)(3) of the Mine Act provides that proceedings under section
105(c) shall be “expedited by the ... Commission.”

    It is important for Mr. Dye and MRSI to understand the limits of my jurisdiction. I do not

have authority to determine whether any actions taken against Mr. Dye by MRSI were unfair and
unreasonable unless such actions violated the anti-discrimination provisions of the Mine Act at
30 U.S.C. § 815(c). Under that provision, a mine operator is prohibited from discriminating
against a miner or applicant for employment because he complained about safety or health
conditions at the mine or refused to perform a task that he reasonably and in good faith believed
presented a hazard to his safety or health. A miner’s safety complaints or actions are known as
“protected activity.” A mine operator may not take adverse action against a miner for such
protected activity.

    If the parties are unable to settle the case and if the case is not otherwise dismissed, a

formal hearing will be held. The issues at the hearing will include whether MRSI discriminated
against Mr. Dye. At a hearing, Mr. Dye will be required to present evidence that he engaged in
protected activity and that MRSI’s adverse actions were motivated at least in part by that
protected activity. MRSI may attempt to rebut Mr. Dye’s case at the hearing by presenting
evidence that either no protected activity occurred or that the actions taken with respect to Mr.
Dye were in no part motivated by the protected activity. If MRSI is unable to present such

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evidence, it may present evidence that the actions it took with respect to Mr. Dye were also
motivated by unprotected activities and that it would have taken these actions for the unprotected
activity alone.

    The Federal Mine Safety and Health Review Commission is not part of the Department of

Labor’s Mine Safety and Health Administration (MSHA). Section 105(c)(3) of the Mine Act
authorized Mr. Dye to file this case on his own behalf. This provision provides him with an
opportunity to try to establish that he was discriminated against. Consequently, this case is not
an appeal of MSHA’s decision not to file a discrimination complaint on behalf of Mr. Dye, but it
is a new, independent proceeding brought by Mr. Dye on his own behalf. I do not have the
authority to review MSHA’s investigation to determine whether it was competent or to determine
whether MSHA’s decision to not bring a case was defensible. Neither MSHA nor the Secretary
of Labor is a party in this proceeding. If Mr. Dye and MRSI are not able to settle this case, Mr.
Dye will be required to present evidence at a hearing to establish that MRSI discriminated
against him in violation of section 105(c) of the Mine Act, as described above.

   1. MRSI shall file its answer in this case on or before September 20, 2002. In order to

encourage the parties to settle this case, counsel for MRSI shall contact Mr. Dye to discuss
settlement. The parties shall confer as often as necessary to negotiate a settlement. If the parties
are unable to settle the case, they shall attempt to narrow the issues, enter into stipulations, and
discuss proposed hearing dates.

   2. On or before October 18, 2002, the parties shall initiate a conference call with me to

discuss the status of the case, potential hearing dates, and other matters that they wish to discuss.

                                           Richard W. Manning
                                           Administrative Law Judge

Distribution:

Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664

Van F. McClellan, Esq., Bearfield & McClellan, P. O. Box 4210, Johnson City, TN 37602-4210

RWM

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