The following is the complaint issued February 1 by the U.S. Department of Labor asking the Federal Mine Safety and Health Review Commission to rule that C.W. Mining discriminated against Co-Op miner Ricardo Chávez. The mine owners have 30 days to respond.
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION OFFICE OF
ADMINISTRATIVE LAW JUDGES
ELAINE L. CHAO, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND RICARDO CHAVEZ,
Complainant,
V.
C.W. MINING COMPANY
Respondent.
DISCRIMINATION PROCEEDING
DOCKET NO.
Case No. DENV-CD-2004-11
Mine: Bear Canyon No. 3 Mine
COMPLAINT OF DISCRIMINATION
This action is brought pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq., Supp. 1, 1977 (hereinafter referred to as the Act).
1. Respondent supervises, operates, and controls mining activities at the Bear Canyon No. 3 Mine located in Huntington, Utah, and is therefore an “operator” as defined by Section 3(d) of the Act.
2. The products of C. W. Mining Company enter commerce or the operations or products of its mine affect commerce.
3. On September 22, 2003, Ricardo Chavez (“Chavez”) and seventy-five (75) other miners at the Bear Canyon #3 Mine, walked off the job in a labor dispute with the company.
4. In June of 2004, C.W. Mining Company entered into an agreement with the National Labor Relations Board (“NLRB”), whereby Chavez and the seventy-five (75) other miners were to be returned to their previous positions without prejudice to seniority or any other rights or privileges previously granted to the employees.
5. On June 30, 2004, Chavez accepted C.W. Mining Company’s offer of reinstatement and confirmed that he would report to work on July 12, 2004. On July 12, 2004, Chavez reported for work and attended part of an annual refresher training course provided by the operator. Chavez was correctly paid for his hours spent in the annual refresher course. However, on this same day, Chavez was notified by Charles Reynolds, a management official at Bear Canyon No. 3 Mine, that Chavez had been identified in a MSHA citation as requiring additional new miner training and that he would not be permitted to work until an additional thirty-two (32) hours of new miner training was completed. Reynold’s also informed Chavez that it was Chavez’s responsibility to arrange for and to pay for the additional training. Due to scheduling difficulties and because Chavez required that the training be conducted in Spanish, Chavez did not complete the additional training until the end of July 2004, or the beginning of August 2004. As a result, he was not able to work between July 13, 2004 and August 2, 2004, with the exception of the completion of three and one half (3.5) hours of annual refresher training at the mine site, in which Chavez participated on July 13, 2004. On August 2, 2004, Chavez reported for work and provided C.W. Mining Company with a letter certifying that he had completed the required thirty-two (32) additional hours of new miner training.
5. At all relevant times herein mentioned, Ricardo Chavez was employed by Respondent as a Laborer at the Bear Canyon No. 3 Mine, and therefore was a “miner” as defined in Section 3(g) of the Act.
6. Section 115(b) of the Act requires that miners be paid either their normal rate of compensation or their starting wage rate while they are taking required training. Chavez was not compensated during the period when he was taking the additional thirty-two (32) hours of new miner training.
WHEREFORE, Complainant requests an order of this Commission against Respondent, C.W. Mining Company, as follows:
1. For a finding that Ricardo Chavez was unlawfully discriminated against by Respondent for engaging in activities protected under Sections 105(c) and 115(b) of the Act;
2. For an order directing Respondent to pay Ricardo Chavez full back pay, other lost wages, employment benefits and consequential and incidental expenses for the time period that he was not able to work, commencing on July 13, 2004 and continuing through August 1, 2004;
3. For an order directing that interest be added to the back pay;
4. For an order granting any and all other additional relief to which the Secretary and/or Ricardo Chavez may be entitled, including, but not limited to interest, costs, exemplary damages and the expungement of Chavez’s employment record with C.W. Mining Company; and
5. For an order assessing a civil money penalty in the amount of $5,000.00 against Respondent for the interference with Chavez’s statutory rights under the Act. By interfering with Chavez’s statutory rights under the Act, Respondent has discouraged the exercise of such rights and has undermined safety at the Bear Canyon No. 3 Mine.
Respectfully submitted,
Howard M. Radzely, Solicitor of Labor
Michael Stabler, Regional Solicitor
Ann M. Noble,
Associate Regional Solicitor
Kristi Floyd and Jennifer Casey,
Trial Attorneys