Sec. 37-1-4 - Rules Applicable to Proceedings Initiated Alleging Discrimination or for Compensation Owed to Miners as a Result of a Withdrawal Order

ยง 37-1-4. Rules Applicable to Proceedings Initiated Alleging Discrimination or for Compensation Owed to Miners as a Result of a Withdrawal Order

4.1. Scope. -- The rules of this section govern and are applicable to proceedings initiated pursuant to section twenty, article one-a, chapter twenty-two-a of the Code by any miner or a representative of miners who believes that he has been discharged or in any other way discriminated against because he, (a) has notified the Director, his authorized representative or an operator, directly or indirectly, of any alleged violation or danger, (b) has filed, instituted or caused to be filed or instituted any proceeding under this law, (c) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of the state mining laws; or any miner who has not been compensated by an operator for lost time due to the posting of a withdrawal order. In addition to the rules contained in this section, the general rules of practice before the Board contained in Section 1 of these rules and the rules relating to hearings held by the Board contained in Section 2 of these rules are also applicable to such proceedings.

4.2. When and by whom applications may be made to Board. -- Any miner or a representative of miners who believes that he has been discharged or otherwise discriminated against as set out in (a), (b) or (c) of Section 4.1 of these rules, or any miner who has not been compensated by an operator for lost time due to the posting of a withdrawal order, may, within thirty (30) days after such violation occurs, make application to the Board for a review of such alleged discharge, discrimination or failure to compensate.

4.3. Initiation of proceedings. -- The proceeding is initiated by filing the application with the Board.

4.4. Contents of application.

An application shall comply with applicable general requirements and shall contain:

(1) The name of the respondent,

(2) A description of the act and detailed circumstances surrounding the alleged discharge, discrimination or failure to compensate, accompanied by any supporting documents that may be available,

(3) Copies of any contract arbitration decision involving the applicant and the same set of facts alleged in the application,

(4) A statement as to whether a similar complaint has been filed with the Secretary of the United States Department of Labor pursuant to 30 U.S.C. '815(c) of the Federal Mine Safety and Health Act.

4.5. Contents of answer. -- An answer shall comply with applicable general requirements and shall contain any documents and materials which could aid the Board in its determination of the possible substance of the charge.

4.6. Who may file an answer; time for answer. -- Any party may file an answer within fifteen (15) days of the date of service of the application on the party. The failure of a party to file an answer shall not foreclose the party's further participation in the proceeding.

4.7. Investigation of application. -- Upon receipt of the application, the Board shall cause such investigation to be made as it deems appropriate. Such investigation shall provide an opportunity for a public hearing as provided in Section 2 of these rules at the request of any party to enable the parties to present information relating to the alleged violation.

4.8. Notice of application. -- A copy of the application along with any other materials filed with the Board shall be served on the respondent by the applicant as set forth in Section 1.9(f) of these rules.

4.9. Notice of hearing. -- Mailing of the notice of hearing to the respondent at his last address of record as reflected in the records of the Department of Energy shall be deemed adequate notice to the respondent.

4.10. To whom notice is to be given and contents of notice.

(a) Notice of any hearing in the matter shall be mailed by certified mail, return receipt requested to:

(1) The applicant;

(2) The respondent; and

(3) To any interested person of record.

(b) Each written notice of the hearing shall contain the date, time and place of the hearing; and a short and plain statement of matters which are to be the subject of or asserted at the hearing. Such notice shall be provided in accordance with the provisions of W. Va. Code '29a-7-2.

4.11. Public hearing. -- A public hearing shall be held only at the request of any party to enable the parties to present information relating to such violation or by order of the Board. A request for such hearing by any party must be filed with the Board and served on all other parties within twenty (20) days of the date of service of the application on the requesting party.

4.12. Final decisions of the Board.

(a) Finding of violation. -- If the Board finds that a violation did occur, it shall issue a decision within forty-five (45) days of the conclusion of the investigation, making findings of fact and conclusions of law, incorporating therein, requiring the person committing such violation to take such affirmative action to abate the violation as the Board deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay, and also pay compensation for the idle time as a result of a withdrawal order.

(b) Finding of no violation. -- If the Board finds that no violation occurred, it shall issue an order denying the application, such order shall incorporate the Board's findings therein.

4.13. Proceedings relative to discharge; forty-five (45) day limitation.

(a) If the proceedings under Section 4 of these rules relative to discharge are not completed within forty-five (45) days of the date of discharge due to delay caused by the operator, the miner shall be automatically reinstated until the final determination.

(b) If the proceedings under Section 4 of these rules relative to discharge are not completed within forty-five (45) days of the date of discharge due to delay caused by the Board, then the Board may, at its option, reinstate the miner until the final determination.

(c) If the proceedings under Section 4 of these rules relative to discharge are not completed within forty-five (45) days of the date of discharge due to delay caused by the miner, the Board shall not reinstate the miner until the final determination.

(d) Prior to any order of reinstatement under sections (a) or (b) of this rule, if no hearing has been previously held on the discharge by either the Board or a Hearing Examiner, the Board shall hold a hearing to determine the cause of any delay and the matters specified herein. Temporary reinstatement until the final determination of the proceedings shall be granted once the Board first determines that it has jurisdiction of the application, unless the respondent shows that there is a substantial unlikelihood that the application will succeed on the merits, and that the granting of the order of temporary reinstatement will adversely affect the safety or health of the miners at the mine where the applicant is to be reinstated.

4.14. Request by applicant for costs. -- Whenever an order is issued under Section 4 of these rules pursuant to W. Va. Code '22a-1a-20(c), at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses including the reasonable attorney's fees as determined by the Board to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation.

4.15. Judicial review. -- Any party adversely affected by a final order or decision issued by the Board under these rules pursuant to W. Va. Code '22a-1a-20 Code shall be entitled to judicial review thereof pursuant to W. Va. Code '29a-5-4.

4.16. Deferral. -- In any proceeding instituted under the Code and to which this section applies and upon motion by any party to the proceeding, the Board may dismiss an application and defer to the processing of the same claim by the United States Department of Labor of the Board finds that the same claim was first presented to the United States Department of Labor and is being or has been processed by that agency.

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