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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
This program information bulletin applies to all mine operators,
miners, representatives of miners, applicants for employment, and
Mine Safety and Health Administration (MSHA) personnel.
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
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 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
The following are some common examples of protected activities and
PROTECTED ACTIVITIES INCLUDE, BUT ARE NOT LIMITED TO:
- filing or making a complaint of an alleged danger or safety or
- 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;
- 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;
- 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.
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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