<DOC>
[DOCID: f:pontik.wais]

 
PONTIKI COAL CORPORATION
June 9, 1997
KENT 94-1274-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006

                           June 9, 1997

SECRETARY OF LABOR,                :
    MINE SAFETY AND HEALTH         :
    ADMINISTRATION (MSHA)          :
    on behalf of CHARLES H. DIXON  :
    BERNARD EVANS, RICHARD         :
    GLOVER, EDGAR OLDHAM,          :
    MARK MARCH, DON RILEY, CHARLES :
    JOHNSON and ELEVEN (11)        :
    UNNAMED EMPLOYEES OF PONTIKI   :
    COAL CORPORATION               :
                                   :
          v.                       :  Docket No.  KENT 94-1274-D
                                   :
PONTIKI COAL CORPORATION           :

BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]

                            DECISION

BY THE COMMISSION:

     This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act").  By order dated November 17, 1995, the Commission
granted the Secretary of Labor's unopposed petition for
interlocutory review of Administrative Law Judge Gary Melick's
February 6, 1995 order.  In the February 6 order, the judge
determined that the Commission has no jurisdiction over
complaints filed by the Secretary regarding (1) discrimination
under section 105(c) of the Act, 30 U.S.C.  815(c), against
individuals who have not filed initiating complaints, and (2)
acts of discrimination not alleged in the initiating complaint.
At the same time, the Commission also granted the unopposed
petition for interlocutory review filed by Pontiki Coal
Corporation ("Pontiki") challenging the judge's September 29,
1995, order.  In his September 29 order, the judge ruled that the
determination as to when Charles H. Dixon became a representative
of miners depends upon when he was so designated by at least two
miners at the subject mine.  The Commission stayed proceedings
before the judge pending resolution of these appeals.

     For the reasons that follow, we reverse the judge's February
6 order and direct the judge to resume proceedings with respect
to all complainants and allegations in the Secretary's complaint.
We also vacate that portion of our November 17 order directing
review of Pontiki's petition, and deny Pontiki's petition.

                               I.

                       Factual Background

     Pontiki operates the Pontiki No. 2 Mine, an underground coal
mine in Lovely, Kentucky.  Jt. Stip. 1.  On March 11, 1994,
Pontiki's vice president for operations, Charles Wesley, held a
meeting with all three shifts of miners at the No. 2 Mine and
told them that the company would recognize and welcome the
participation of any miner employed by Pontiki properly
designated as a miners' representative, but that it would not
recognize non-employees, including officials of the United Mine
Workers of America ("UMWA"), as miners' representatives because
the company did not believe non-employees could serve as miners'
representatives.  Jt. Stip. 16.

     During that meeting, the employees were also told that
Pontiki would actively oppose the designation of any non-employee
as a miners' representative, including non-employee UMWA
officials, that if such a designation occurred Pontiki might have
to expend considerable legal fees to defend its position that
only Pontiki employees are entitled to act as representatives of
miners at the mine, and that costs incurred could affect their
job security.  Jt. Stip. 17.  Wesley stated that Pontiki would
not post any certification that appointed non-employees as
representatives and that such action would cost the company $5000
per day in penalties assessed by the Department of Labor's Mine
Safety and Health Administration ("MSHA").  S. Mot for Summ.
Decision, Gov't Ex. 3 at 2.  Wesley also stated that the money
could be put on the bathhouse floor and divided up among the
miners, which he calculated would amount to about $1800 per
miner.  Id. Gov't Ex. 3, p.2.

     On April 14, 1994, UMWA employee Charles H. Dixon filed with
MSHA information required under 30 C.F.R. Part 40[2].  Jt. Stip.
Doc. C.  The Part 40 filing consisted of a "Certificate of
Representation" designating the UMWA as miners' representative,
including Dixon, six other non-employee UMWA officials, and three
Pontiki employees.  Jt. Stip. Doc. C.  On April 15, 1994, Pontiki
received its copy of the Part 40 filing.  Jt. Stip. 18.  That
same day, Pontiki posted on the mine bulletin board the Part 40
filing, Dixon's transmittal letter and a notice stating that
Pontiki had posted the designation papers "under protest" because
Pontiki refuses to recognize non-employees as miners'
representatives.  Jt. Stip. 19 & Doc. D.

     On April 26, 1994, Dixon filed a discrimination complaint
with MSHA pursuant to the provisions of section 105(c)(2) of the
Act.[3]  Jt. Stip. 20 & Doc. E.  After conducting an
investigation of the complaint and making a determination of
violation, the Secretary filed a complaint with the Commission on
September 2, 1994, which was amended on October 3, 1994.  The
amended complaint alleged that Pontiki discriminated against
Dixon, six other non-employee miners' representatives listed on
the Part 40 designation, and 11 unnamed miners who had designated
the UMWA officials to be their representatives. Am. Compl. 
5,6.  It alleged that from March 1994 on, Pontiki discriminated
against Dixon and the 17 other individuals by (1) refusing to
recognize the non-employee miners' representatives, (2) posting
the designation with the admonishment that it would refuse to
recognize non-employee miners' representatives, and (3) holding
employee meetings and threatening employees with possible job
loss if they continued their effort to designate non-employee
miners' representatives.  Id.  6.

                               II.

                      Procedural Background

     Before the judge, Pontiki filed a motion to dismiss on the
grounds, inter alia, that the Commission lacks jurisdiction over
individuals who have not filed initiating complaints with MSHA
under section 105(c)(2) of the Act, and for whom the Secretary
has not issued a written determination concerning their
complaints.  P. Mot. to Dismiss at 3-4.  The judge granted
partial dismissal, ruling that the Commission had no jurisdiction
over individuals who had not filed an initiating complaint with
MSHA.  Feb. 6 Order at 4.  The judge also determined that he
lacked jurisdiction over allegations of discrimination not set
forth in the initiating complaint.  Id.

     The judge further concluded that he was "without
jurisdiction to consider any alleged acts of discrimination
occurring before April 15, 1994[,]" the date Pontiki received the
Part 40 filing notifying it of Dixon's status as a representative
of miners.  Feb. 6 Order at 5.  However, following a hearing held
on March 9, 1995 on the motion to dismiss, the Secretary entered
into evidence an affidavit by Dixon averring that, prior to March
11, 1994, five miners had signed the Part 40 designation
appointing Dixon as their representative.  Aff. of Charles Dixon
(March 2, 1995,  5).  Based on this evidence, the judge issued
an amended order dated March 10, 1995, deferring, for a hearing
on the merits, the determination of when Dixon became a
representative of miners.  Am. Order Granting Partial Dismissal.

     The Secretary then filed a petition for discretionary review
("PDR") challenging the judge's February 6 order.  On March 21,
1995, the Commission denied the PDR as premature on the ground
that the February 6 order was not a final decision.  On April 6,
1995, Pontiki moved for reconsideration of the March 10 amended
order.  On September 29, 1995, the judge denied Pontiki's motion
for reconsideration.  Both the Secretary and Pontiki filed
motions for certification of the February 6 and September 29
orders, respectively.  The judge denied both motions and these
petitions for interlocutory review followed.

                              III.

                           Disposition

     The Secretary argues that the judge erred in dismissing her
complaint filed with the Commission on behalf of the individuals
whose names did not appear on the complaint filed with MSHA
because the language of the statute, the statute's purpose and
Commission precedent all establish that section 105(c) authorizes
her to file a complaint whenever she learns through investigation
of an initiating complaint that the operator has engaged in
unlawful conduct.  S. Pet. at 8-11.  Stressing the broad and
liberal construction to be accorded the Act's anti-discrimination
provisions, the Secretary contends that the judge and the
Commission should defer to her interpretation of section 105(c).
Id. at 9-11.  The Secretary further argues that, under the plain
language of section 105(c)(2), she is required to conduct such
investigation "as [s]he deems appropriate," and that nothing in
that section precludes the Secretary from filing a complaint if
she learns during the investigation of an initiating complaint
that the operator has engaged in unlawful acts of discrimination
(1) against miners who did not file an initiating complaint, or
(2) which were not specifically set forth in the initiating
complaint.  Id. at 13-15.

     Pontiki argues that the judge correctly determined that the
Commission lacks jurisdiction over claims asserted by the
Secretary on behalf of the 17 individuals who failed to file a
complaint with the Secretary under section 105(c)(2).  P. Resp.
Br. at 33.  According to Pontiki, a  person who believes he has
been discriminated against must first "file a complaint with the
Secretary alleging such discrimination."  Id. at 10.  Pontiki
contends that the judge correctly determined that the section
105(c)(2) complaint filed with the Commission on behalf of the
individuals who did not file their own initiating complaints with
MSHA must be dismissed.  Id. at 11-14.  Pontiki asserts that the
Commission need not reach the Secretary's contention that the
judge erred by dismissing the complaint insofar as it contained
allegations not included in the initiating complaint. Id. at 6-8.

      With respect to the September 29 order, Pontiki argues that
the judge erred in ruling that Dixon could have become a
representative of miners as soon as two miners designated him as
such, and prior to the filing of his Part 40 papers.  P. Br. at
8-22.  Pontiki asserts that the standard adopted by the judge is
inconsistent with the decision of the court of appeals in Utah
Power & Light Co. v. Secretary of Labor, 897 F.2d  447 (10th Cir.
1990) ("UP&L").  P. Br. at 13-16.  Pontiki further argues that
the Commission cases relied upon by the judge have not survived
UP&L, and in any case do not support his ruling.  Id. at 16-22.

     The Secretary responds that the judge correctly deferred to
her interpretation of the term "miners' representative" as
including all individuals authorized by two or more miners to
represent them for purposes of the Act.  S. Br. at 9-10.  The
Secretary asserts that her interpretation is consistent with the
language of her Part 40 regulations, their purpose, and the Mine
Act.  Id. at 11-13.  She contends that UP&L is inapplicable
because it involved a representative's attempt to assert
walkaround rights.  Id. at 16-19.  The Secretary further argues
that Commission decisions recognize that an individual becomes a
miners' representative when two or more miners so designate him
or her, and that these holdings are unaffected by UP&L.  Id. at
19-21.

     A.   Whether Dixon's Initial Complaint was Properly
          Brought on Behalf of the Miners Who Designated
                  Dixon as their Representative

     Pontiki argues that the Act precludes the filing of
complaints by a representative of miners on behalf of the miners
he represents.  P. Resp. Br. at 10.  Pontiki's contention rests
on the use of the singular pronoun in section 105(c)(2) of the
Act, which states that "[a]ny . . . representative of miners who
believes that he has been . . . discriminated against . . . may
. . . file a complaint with the Secretary alleging such
discrimination."  Id. (emphasis supplied).

     We reject this argument.  Section 105(c)(2) specifically
lists a "representative of miners" as a person authorized to file
a complaint, and does not restrict the ambit of any such
complaint. Pontiki's construction of section 105(c)(2) is at
variance with the notion of a representative of miners who, as
the statutory title suggests, is expected to act on behalf of
miners.  See also the regulatory definition of miners'
representative at n.2, supra.  Nothing in the language or
legislative history of the Act suggests that Congress intended,
by use of the word "he," to prevent miners' representatives from
acting in that very capacity.  Thus, section 105(c)(1) states:

          [n]o person shall . . . interfere with the
          exercise of the statutory rights of any
          miner, representative of miners . . . because
          of the exercise by such miner [or]
          representative of miners . . . on behalf of
          himself or others of any statutory right
          afforded by this [Act].

30 U.S.C.   815(c)(1) (emphasis supplied).

     The purpose of legislatively authorizing, empowering, and
protecting a class of persons known as a "representative of
miners" was to enable miners to appoint someone to help them
ensure that their work environment would be free from health and
safety hazards, and to ensure that their statutory rights would
be protected.  Absent that function, the "representative of
miners" has no purpose under the Act.  We therefore conclude that
Congress' inclusion of representatives of miners among the
parties protected under section 105(c) was intended not only as a
way to protect the individual representative (who may not even be
an employee,[4] and thus may not be at risk of incurring the
usual types of retaliation suffered by employees) from operator
discrimination, but also as a further protection to the miners,
whose representative may be more informed regarding the
protections under the Act, and can therefore more readily enlist
the protection of MSHA.  See Utah Power & Light Co., 897 F.2d
447, 451 (10th Cir. 1990).  Thus, Dixon had the lawful authority
to file a complaint of discrimination both on his own behalf and
on behalf of those miners he was designated to represent.

     We also disagree with the rationale relied on by the judge
to preclude Commission jurisdiction over the miners who had
signed Dixon's authorization but had not signed the initiating
complaint filed with MSHA.  The judge reasoned that Dixon's
complaint was filed by Dixon "alone" and processed as an
individual complaint by the Secretary.  In support of this
finding, the judge stressed that Dixon "is the only named
complainant and only Dixon's signature appears on the Complaint."
Feb. 6 Order at 4.  The judge added that the Secretary's letter
to Dixon following the investigation referred to "`your'
complaint of discrimination and conclude[d] that `you' have been
discriminated against."  Id.  In light of these findings, the
judge concluded:  "There is, accordingly, no legal basis for the
Secretary's expanded complaint filed with this Commission
alleging discrimination against persons other than Charles
Dixon."  Id.

     By focusing on Dixon's name and signature on the complaint,
the judge has misconstrued its core purpose.  The complaint
clearly challenges Pontiki's refusal to recognize the lawful
representatives of miners pursuant to the designation filed by
Dixon.  It contains the following requests for relief:

          (1) [t]hat management be directed to immediately cease
          and desist from interferring [sic] with the statutory
                  rights of the miners to freely choose a miners' 
                  representative.

          (2) that Pontiki . . . properly post the Miners[']
          Certificate of Representation without any protests.

          (3) [t]hat Pontiki . . . immediately post a notice to
          employees which apologizes to the miners for the 
                  company's interference with their statutory rights.

          (4) that MSHA properly fine Pontiki . . . for the
          company's treatment and intimidating interference
                  with the miners' statutory rights.

          (5) that management conduct a meeting with the miners
          whereby [Dixon] can be properly introduced as the
          miners['] authorized representative.

          Jt. Stip. Doc. E (emphasis supplied).

     Thus, the complaint contains allegations of illegal
discrimination against the miners as a group and
clearly reflects that Dixon filed the complaint in his
representative capacity, not simply on his own behalf.
Additionally, since the gravamen of both Dixon and the
Secretary's complaint is Pontiki's refusal to recognize
the designation of non-employee representatives of
miners and Pontiki management's threatening statements
to the miners, we do not agree with the judge that the
Secretary has in any meaningful sense "expanded"
Dixon's initiating complaint.

     In sum, we conclude that Dixon's complaint is an adequate
predicate to the complaint filed by the Secretary on behalf of
the miners whom Dixon represented. Accordingly, we reverse the 
judge's determination that he had no jurisdiction over the
Secretary's complaint as it pertains to these individuals.

     Whether Dixon, as a representative of miners, may file
a  complaint on behalf of other miners' representatives
under section 105(c)(2) is a question we need not
address.  In this case, as we explain in Part III-B, we
conclude that the Secretary's complaint alleging
discrimination against the other miners'
representatives is based on, and reasonably related to,
his investigation of the same complaint filed by Dixon,
and therefore falls within the Commission's
jurisdiction.

     B.   Whether the Secretary's Complaint is Limited to the
          Individuals and Charges Set Forth in the Initiating
          Complaint

      In  contending that the Secretary's complaint is overbroad,
Pontiki relies on section 105(c)(2) and argues that the Secretary
is limited to filing complaints only on behalf of those who have
filed an initiating complaint.  The Secretary contends that
section 105(c)(2) permits her to file a complaint alleging all
discrimination her investigation may have uncovered, even
discrimination that affected individuals who did not file an
initiating complaint.   We are thus presented with a question of
statutory construction on which the Secretary has offered her
interpretation of the Mine Act.  In such circumstances, the first
inquiry is "whether Congress has directly spoken to the precise
question in issue."  Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin
Coal Co., 18 FMSHRC 582, 584 (April 1996).  If a statute is clear
and unambiguous, effect must be given to its language.  Chevron,
467 U.S. at 842-43.  When a statute is silent or ambiguous with
respect to the question at issue, however, we defer to the
interpretation of the agency charged with administering the
statute, so long as that interpretation is reasonable.  Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir 1994),
aff'g 15 FMSHRC 587 (April 1993).

     Under section 105 of the Mine Act, Congress reserved final
authority to the Commission for determining both the validity and
scope of complaints but charged the Secretary with administration
of the statute.  Thus, if a Mine Act provision is not clear, we
ask whether her interpretation is reasonable.  Here, section
105(c)(2) is silent concerning the relationship between the
initiating complaint and the Secretary's complaint filed with the
Commission.  Accordingly, we proceed to examine the
reasonableness of the Secretary's interpretation that she is not
limited to the bare allegations of the initiating complaint to
MSHA in drawing up her complaint to the Commission.

     We find that the Secretary's interpretation is consistent
with the language of section 105(c)(2) governing the issuance of
her complaint.  That language specifies that, upon receipt of an
initiating complaint,

          the Secretary . . . shall cause such
          investigation to be made as [s]he deems
          appropriate. . . .  If upon such
          investigation, the Secretary determines that
          the provisions of this subsection have been
          violated, [s]he shall immediately file a
          complaint with the Commission . . . alleging
          such discrimination . . . ."

30 U.S.C.  815(c)(2) (emphasis supplied).

     We conclude that the Secretary reasonably interprets "such
discrimination" to refer to the discrimination uncovered during
the Secretary's investigation of Dixon's initiating complaint.
We also conclude that the scope of the Secretary's investigation,
and her authority under section 105(c)(2) to issue a complaint
based upon her investigation, are broader than Pontiki contends.
This is consistent with our conclusion that Congress intended
section 105(c) to be broadly construed to afford maximum
protection for miners exercising their rights under the Act.
Swift v. Consolidation Coal Co., 16 FMSHRC 201, 212 (February
1994) ("the anti-discrimination section should be construed
`expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the legislation.'")
(quoting S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 624 (1978)).

     The Secretary's interpretation of section 105(c)(2), insofar
as she claims authority to file a complaint reasonably related to
the initiating complaint, is also consistent with other Mine Act
provisions giving the Secretary broad authority to investigate
and remedy violations of the Mine Act.  As the Secretary points
out (S. Pet. at 12-13) and Pontiki concedes (Oral Arg. Tr. on
Review at 30-31), under section 104(a) of the Act, 30 U.S.C. 
 814(a), the Secretary is required to issue a citation for any
violation of the Act she uncovers upon inspection or
investigation.

     In addition, the Secretary's interpretation of section
105(c)(2) is consistent with Commission precedent recognizing
that it is the scope of the Secretary's investigation, rather
than the initiating complaint, that governs the permissible ambit
of the complaint filed with the Commission.  In Hatfield v.
Colquest Energy, Inc., 13 FMSHRC 544 (April 1991), the operator
moved to dismiss a discrimination claim prosecuted by an
individual miner under section 105(c)(3) of the Act on the
grounds that the miner's complaint differed substantially from
the complaint he initially filed with MSHA, and that MSHA had
never investigated the allegation contained in the section
105(c)(3) complaint.   The Commission stated:

          If the Secretary's . . . investigation . . .
          did not include consideration of the matters
          contained in the amended complaint, the
          statutory prerequisites for a complaint
          pursuant to  105(c)(3) have not been met.

Id. at 546.  The corollary to this holding is that the
prerequisites were met if the investigation had included the
matters contained in the section 105(c)(3) complaint.  Our
holding here merely applies this corollary to a complaint filed
by the Secretary herself under section 105(c)(2).

     Moreover, in this case the complaint filed by the Secretary
alleges the same discriminatory conduct alleged by Dixon in the
initiating complaint filed with MSHA.  Both complaints concern
Pontiki's refusal to acknowledge non-employee representatives of
its miners.  Thus, the Secretary's addition of the names of other
representatives of miners similarly affected, like her addition
of the unnamed miners, changes neither the relief sought nor the
basis of the charge as originally filed.  The Secretary's
complaint merely identifies those who were affected by the
alleged discriminatory conduct.  We also find that the issues
raised in the Secretary's complaint do not deviate from those set
forth in Dixon's complaint to MSHA.[5]

     Accordingly, we reverse the judge's determination that the
Commission lacks jurisdiction over the Secretary's complaint as
filed in this case.

     C.   Whether Dixon Became a Representative of Miners Prior
          to His Part 40 Filing

     Based on his order dismissing the Secretary's complaint on
behalf of all individuals other than Dixon, the judge initially
determined that he had no jurisdiction to consider any alleged
acts of discrimination occurring before April 15, 1994, the date
Pontiki received a copy of the certificate of representation
filed by Dixon.  Feb. 6 Order at 4.  On March 10, 1995, the judge
amended this ruling and set an evidentiary hearing to determine
the date on which Dixon was designated by two miners to be their
representative.  By order dated September 29, 1995, the judge
denied Pontiki's motion for reconsideration of the March 10
amended order.

     Given our reversal of the judge's dismissal of the miners
from this proceeding, the date that Dixon became a miner's
representative is no longer relevant.  There is no dispute that
Dixon was a miner's representative on April 26, 1994, the date he
filed his complaint with MSHA.[6]   Nor is there a dispute that
the miners on whose behalf Dixon filed the initiating complaint,
and on whose behalf the Secretary filed his section 105(c)(2)
complaint, were miners at the time the allegedly discriminatory
actions took place.  Accordingly, the judge has jurisdiction over
all acts of discrimination alleged in the complaint.

     Because we need not reach the issue whether Dixon became a
representative of miners prior to April 15, 1994, we vacate that
portion of our order dated November 17, 1995 granting Pontiki's
petition for interlocutory review, and we deny Pontiki's
petition.

                               IV.

                           Conclusion

     For the foregoing reasons, we reverse the judge's February
6, 1995 partial dismissal of the Secretary's complaint.  We
vacate our grant of Pontiki's petition for interlocutory review,
deny the petition, lift the stay previously imposed in our order
of November 17, 1995, and direct the judge to resume proceedings
with respect to all alleged discriminatees and issues set forth
in the Secretary's complaint.

                                   Mary Lu Jordan, Chairman

                                   Marc Lincoln Marks, Commissioner

                                   James C. Riley, Commissioner

**FOOTNOTES**

     [1]:   Commissioner Verheggen assumed office after this case
had  been considered  and  decided  at  a  Commission  decisional
meeting.    A  new  Commissioner  possesses  legal  authority  to
participate  in   pending   cases,   but  such  participation  is
discretionary.  Mid-Continent Resources,  Inc.,  16  FMSHRC 1218,
1218  n.2  (June  1994).   In  the interest of efficient decision
making, Commissioner Verheggen has  elected not to participate in
this matter.

     [2]:  30 C.F.R.  40.1, entitled  "Definitions," provides in
relevant part (emphasis in original):

             As used in this Part 40 . . .
     (b) Representative of miners means:
              (1)  Any  person  or  organization  which
          represents two or more miners  at  a  coal or
          other  mine for the purposes of the Act,  and
          (2) Representatives authorized by the miners,
          miners or  their  representative,  authorized
          miner representative, and other similar terms
          as they appear in the Act.

     30  C.F.R.    40.2,  entitled "Requirements,"  provides  in
relevant part:

             (a) A representative  of miners shall file
          with    the    Mine    Safety    and   Health
          Administration   District  Manager  for   the
          district in which  the  mine  is  located the
          information  required by  40.3 of this  part.
          Concurrently,  a  copy  of  this  information
          shall be provided to the operator of the mine
          by the representative of miners.

               (b)   Miners   or  their  representative
          organization   may   appoint   or   designate
          different  persons  to represent  them  under
          various  sections of the  [A]ct  relating  to
          representatives of miners.

             (c) All information filed pursuant to this
          part shall  be maintained by the  appropriate
          Mine   Safety   and   Health   Administration
          District Office and  shall  be made available
          for public inspection.

     [3]:  Section 105(c)(2) provides in relevant part:

          Any  .  .  .  representative  of  miners  who
          believes  that  he  has been . . . interfered
          with, or otherwise discriminated  against . .
          .  may,  within  60 days after such violation
          occurs, file a complaint  with the Secretary.
          .  . .  Upon receipt of such  complaint,  the
          Secretary    .   .   .   shall   cause   such
          investigation  to  be  made  as  [s]he  deems
          appropriate   .   .   .   .    If  upon  such
          investigation, the Secretary determines  that
          the  provisions  of this subsection have been
          violated,  [s]he  shall  immediately  file  a
          complaint with the  Commission,  with service
          upon  the  alleged  violator and the  .  .  .
          representative   of  miners   alleging   such
          discrimination or interference and propose an
          order granting appropriate relief. . . .

30 U.S.C.  815(c)(2).

     [4]:  The caselaw is clear  that  non-employees may serve as
miners' representatives.  See Thunder Basin  Coal  Co. v. FMSHRC,
56 F.3d  1275 (10th Cir. 1995); Kerr-McGee Coal Co. v. FMSHRC, 40
F.3d 11257 (D.C. Cir. 1994), cert denied, 115 S.Ct. 2611 (1995).

     [5]:   In light of these conclusions, we need not  determine
in this case the extent of the Secretary's authority to file with
the  Commission  a  complaint  of  discrimination  that  contains
allegations  of  discrimination  not  set forth in the initiating
complaint.

     [6]:   Before  the  judge,  Pontiki at  one  point  disputed
Dixon's status as a miner's representative  even  after the April
15,  1994  Part 40 filing.  Feb. 6 Order at 5.  However,  Pontiki
has  apparently   abandoned  that  position.   See  P.  Mot.  for
Certification at 10; P. Br. at 22.