Secretary of Labor on behalf of Billy Dale Wise, Leo E. Conner, and Richard N. Truex v. Consolidation Coal Company (ALJ decision, May 17, 1985)

Plain-English summary

Consolidation Coal asked Judge Gary Melick to dismiss three miners' discrimination complaints because the Secretary filed them late with the Commission. The Secretary acknowledged the delays, which arose during agency review and penalty assessment. The judge found no bad faith and noted that Consolidation Coal conceded it suffered no legal prejudice. He held that the miners should not lose their cases because of the government's delay and denied the dismissal and summary decision motions. The underlying discrimination claims remained unresolved in this order.

Decision snapshot

• Governing provision: Mine Act section 105(c), 30 U.S.C. § 815(c), and Commission filing rules for discrimination complaints.
• Outcome: Motions to dismiss or summarily decide the three complaints denied; no merits decision or penalty entered.
• Key point: Government filing delays did not justify dismissal without bad faith or prejudice to the operator.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) & B.D. WISE V. CONSOLIDATION COAL SOL (MSHA) & R.N. TRUEX V. CONSOLIDATION COAL DDATE: 19850517 TTEXT:
~971
APPENDIX A

May 17, 1985

SECRETARY OF LABOR,
DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 85-148-D
ON BEHALF OF
MSHA Case No. MORG CD 84-16
BILLY DALE WISE, AND
LEO E. CONNER,
Docket No. WEVA 85-149-D
COMPLAINANTS
MSHA Case No. MORG CD 84-19
v.
Ireland Mine
CONSOLIDATION COAL COMPANY,
RESPONDENT

SECRETARY OF LABOR,
DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH
ADMININSTRATION (MSHA),
Docket No. WEVA 85-151-D
ON BEHALF OF
MSHA Case No. MORG CD 85-2
RICHARD N. TRUEX,
Complainant
McElroy Mine
v.
CONSOLIDATION COAL COMPANY,
Respondent

DECISION DENYING MOTION TO DISMISS

APPEARANCES: Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, Philadelphia,
Pennsylvania, for Complainants;
Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, Pennsylvania, for
Respondent.

Before: Judge Melick

These proceedings are before me upon Motions to Dismiss filed by the Consolidation Coal Company (Consol) in which it is alleged that the complaints in these cases were filed untimely with this Commission. Preliminary hearings were held in accordance with Rule 12(d) of the Federal Rules or Civil Procedure upon the request by Consol for disposition of the motions before trial on the merits. At hearing Consol ~972 amended its motion to request summary decisions under Commission Rule 64. 29 C.F.R. 2700.64. The facts underlying the issues before me are not in dispute.

DOCKET NO. WEVA 85-148-D

The individual Complainant in this case, Billy D. Wise, filed a timely complaint of discrimination with the Secretary of Labor on July 30, 1984, based upon his allegation of a discriminatory loss of pay on July 16, 1984. The Secretary did not however file his complaint with this Commission on behalf of Mr. Wise until March 26, 1985, nearly 8 months later. The Secretary informed Mr. Wise of that filing by letter dated April 24, 1985.

The Secretary acknowledges that he did not file the complaint in a timely manner but sets forth circumstances to explain that untimeliness. Counsel for the Secretary proffered without contradiction that the Philadelphia Regional Solicitor's Office (which represents the Secretary in this matter) did not receive the case file from the Mine Safety and Health Administration (MSHA) for its legal determination until September 28, 1984. Inasmuch as the case purportedly involved an issue of "first impression" the Regional Solicitor requested an opinion from the National Solicitor's Office on November 28, 1984. That opinion, to proceed with the case before this Commission, was issued on December 10, 1984 and was received by the Regional Solicitor's Office on December 20, 1984.

The designated trial attorney in the Regional Solicitor's Office thereafter, on December 26, 1984, forwarded the case file to the Office of Assessments within the Department of Labor for a civil penalty evaluation needed to comply with Commission Rule 42(b), 29 C.F.R. 2700.42(b). The requested evaluation was returned from the Office of Assessments to the Philadelphia Solicitor's Office on March 15, 1985 and the complaint at bar was filed with this Commission on March 26, 1985. There was an admitted breakdown in procedures within the Department of Labor in failing to give written notice to Mr. Wise upon the Secretary's final determination (on December 10, 1984) that discrimination had occurred.

DOCKET NO. WEVA 85-149-D

The individual Complainant in this case, Leo E. Conner, filed a timely complaint of discrimination with the Secretary of Labor on August 16, 1984, based upon his allegation of a discriminatory loss of pay on July 19, 1984. The ~973
Secretary did not file his complaint with this Commission on behalf of Mr. Conner until March 28, 1985, more than 7 months later. The Secretary informed Mr. Conner of that filing by letter dated April 24, 1985.

The Secretary again acknowledges that he did not file the complaint in a timely manner and sets forth similar circumstances to explain that untimeliness. Counsel for the Secretary proferred that the Philadelphia Solicitor's Office did not receive the case file from the MSHA for its legal determination until September 25, 1984. Since this also purportedly involved an issue of "first impression" the Regional Solicitor requested an opinion from the National Solicitor's Office on November 28, 1984. A response was obtained from that office on December 20, 1984 in which final authorization was received to proceed with the case before this Commission.

The designated trial attorney in the Philadelphia Solicitor's Office thereafter, on December 26, 1984, forwarded the case file to the Office of Assessments within the Department of Labor for a civil penalty evaluation needed to comply with Commission Rule 42(b). The file was returned from the Office of Assessments to the Philadelphia Solicitor's Office on March 15, 1985 and the complaint at bar was filed with this Commission on March 28, 1985. There was again an admitted breakdown in procedures within the Department of Labor in failing to notify Mr. Conner by letter upon the final determination by the Secretary's representative (on December 10, 1984) that discrimination had occurred.

DOCKET NO. WEVA 85-151-D

The individual Complainant in this case, Richard Truex, filed a timely complaint of discrimination with the Secretary of Labor on October 10, 1984, based upon his allegation of a discriminatory loss of pay on August 28, 1984. The Secretary did not however file his complaint on behalf of Mr. Truex with this Commission until April 2, 1985, nearly 6 months later. The Secretary informed Mr. Truex of that filing by letter dated April 11, 1985.

The Secretary again acknowledges that he did not file the complaint in a timely manner and sets forth similar circumstances to explain that untimeliness. Counsel for the Secretary proferred that the Philadelphia Solicitor's Office did not receive the case file from MSHA for its legal determination until December 20, 1984. That office decided on ~974
January 8, 1985 to proceed with this case before this Commission and forwarded the case file to the Office of Assessments for a civil penalty evaluation needed to comply with Commission Rule 42(b). The file was returned from the Office of Assessments to the Philadelphia Solicitor's Office on March 18, 1985 and the complaint at bar was filed with this Commission on April 2, 1985. There was again an admitted breakdown in procedures within the Department of Labor in failing to notify Mr. Truex by letter upon the final determination by the Secretary (on January 8, 1985) that discrimination had occurred.

Analysis

Consol argues that the Secretary's delays in filing these complaints with this Commission violates the provisions of section 105(c) of the Act. Section 105(c)(3) provides in part that "within 90 days of the receipt of a complaint filed [under section 105(c)(2) ] the Secretary shall notify, in writing, the miner, applicant for employment, or representative of miners of his determination whether a violation has occurred." Section 105(c)(2) provides that upon the Secretary's determination that section 105(c) has been violated "he shall immediately file a complaint with the Commission, with service upon the alleged violator, and the miner, applicant for employment, or representative of miners alleging such discrimination [emphasis added]." Consol also alleges that these filing delays were in violation of Commission Rule 41(a), 29 C.F.R. 2700.41(a), which requires that a complaint of discrimination "shall be filed by the Secretary within 30 days after his written determination that a violation has occurred." Consol concedes that it did not suffer any legal prejudice as a result of the cited delays but nevertheless asserts that the cases should be dismissed for untimely filing.

The Secretary admits the filing delays but suggests that these delays were attributable to the heavy caseload in his office and a manpower shortage. He also claims that some of the delays were attributable to the procedures now required by amended Commission Rule 42, 29 C.F.R. 2700.42. Commission Rule 42 as amended on February 2, 1984 requires the Secretary to include in his complaint filed with the Commission a specific proposed civil penalty and the reasons in support thereof. The Secretary represents that he is now studying various methods for shortening his procedures for proposing civil penalties in discrimination cases. The Secretary argues that for the above reasons the delays in these cases were excusable.
~975
The Secretary further argues that his tardiness should be excused because dismissal of these cases would only hurt the individual complainants he represents--contrary to the congressional intent. The legislative history relevant to section 105(c) reads as follows:

"The Secretary must initiate his investigation within 15 days of receipt of the complaint, and immediately file a complaint with the Commission, if he determines that a violation has occurred. The Secretary is also required under [section 105(c)(3) ] to notify the complainant within 90 days whether a violation has occurred. It should be emphasized, however, that these time frames are not intended to be jurisdictional. The failure to meet any of them should not result in a dismissal of the discrimination proceeding; the complainant should not be prejudiced because of the failure of the Government to meet its time obligations."

S.Rep. No. 181, 95th Cong., 1st Session 36 (1977), reprinted in 1977 U.S.Code Cong. & Ad. News, at 3436.

Within this framework I am compelled to find that the Secretary's delays in filing these complaints do not warrant dismissal of these cases. I do not find any evidence that the delays were caused by bad faith and it appears that the Secretary's tardiness was caused in part by his limited staff and heavy caseload. In addition it would be totally inappropriate to prejudice the individual complainants in these cases (who have not caused the delays) because of the Secretary's tardiness. Finally, since Consol concedes herein that it did not suffer any legal prejudice by the delays those delays are accordingly harmless.1 Under the circumstances the motions to dismiss (and/or motions for summary decision) are denied.

Gary Melick
Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

~Footnote_one

1 No request has been made for sanctions solely against the Secretary for his acknowledged tardiness. However consideration could be given in any civil penalty assessment for any additional costs to Consol attributable to the delays.