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ISSUE DATE: JAN 24, 1994
PROGRAM INFORMATION BULLETIN NO. P94-2

FROM: VERNON GOMEZ Admin for Metal & Nonmetal Mine Safety & Health MARVIN W. NICHOLS, JR. Administrator for Coal Mine Safety and Health

SUBJECT: Section 105(c) Discrimination Complaints Filed by Miners, Representatives of Miners, and Applicants for Employment

Scope

This program information bulletin applies to all mine operators, miners, representatives of miners, applicants for employment, and Mine Safety and Health Administration (MSHA) personnel.

Purpose

The purpose of this bulletin is to reemphasize the rights of miners, representatives of miners, and applicants for employment, provided under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) against illegal acts of discrimination as a result of protected activities.

Information

Congress intended that miners play an active part in the enforcement of the Mine Act in order to have a truly effective national mine safety and health program. To do this, miners are encouraged to be active in safety and health matters and must be protected against any possible discrimination which they might suffer as a result of their participation. Section 105(c) of the Mine Act prohibits such discrimination.

Discrimination on the basis of race, sex, age, religion, handicap, etc., is not covered by Section 105(c) of the Mine Act. However, MSHA will assist the complainant in contacting other agencies for the appropriate relief.

The following are some common examples of protected activities and discriminatory acts.

PROTECTED ACTIVITIES INCLUDE, BUT ARE NOT LIMITED TO:
- filing or making a complaint of an alleged danger or safety or health violation;
- instituting any proceeding under this Act (for example, filing a complaint with the Federal Mine Safety and
Health Review Commission pursuant to Section 111); - being the subject of medical evaluation and potential transfer under Section 101 (harmful physical agents and toxic substances);
- enforcement of the safety training provisions of Section 104 (g) and Section 115;
- refusal to work in unsafe or unhealthy conditions; and
- Exercising any statutory rights afforded by the Mine Act.

DISCRIMINATORY ACTS INCLUDE, BUT ARE NOT LIMITED TO:
- discharge or termination;
- laying off;
- demotion;
- refusal of employment;
- reduction in benefits, vacation, bonuses, or rates of pay;
- changes in pay and hours of work;
- subtle forms of interference, such as promises of benefit or threats of reprisal; - interference with the exercise of the statutory rights of miners; and
- transfer to another position with compensation at less than the regular rate of pay received immediately prior to transfer.

If a miner, representative of miners, or applicant for employment believes that illegal discrimination has occurred, a Section 105(c) discrimination complaint must be filed with the Secretary of Labor (Secretary) within 60 days of the discriminatory act. This complaint may be filed with any MSHA District, Subdistrict, Field, or Headquarters office where specially trained persons will be available to answer inquiries and assist individuals in filing a complaint.

MSHA will assign an investigator and initiate an investigation within 15 days of receipt of the complaint. With the complainant's cooperation, a full and thorough investigation will be conducted. Within 90 days, the Secretary will issue a decision indicating either a finding of discrimination on behalf of the complainant or that no violation of Section 105(c) has occurred.

If the Secretary determines that discrimination has occurred, the Office of the Solicitor (SOL) will file a complaint on the miner's behalf with the Federal Mine Safety and Health Review Commission, seeking an appropriate remedy. For example, SOL might request that the complainant be reinstated to his or her former position, receive back pay for wages lost, be transferred, and/or any other appropriate action that would correct the discrimination.

If the Secretary determines that no discrimination has occurred, MSHA will notify the complainant of this decision. MSHA will also inform the complainant of his or her right to pursue the matter without MSHA's assistance by filing an individual complaint with the Federal Mine Safety and Health Review Commission within 30 days of receipt of MSHA's determination letter. If the Commission agrees with the complainant and finds that discrimination occurred, the Commission may order an appropriate remedy.

Authority

Federal Mine Safety and Health Act of 1977.

Issuing Office and Contact Person

Metal/Nonmetal Mine Safety and Health, Technical Compliance and Investigation Division: James E. Belcher, (703) 235-1708

Coal Mine Safety and Health, Technical Compliance and Investigation Division: Lawrence M. Beeman, (703) 235-1920

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