Centralia Mining Company

Plain-English summary

The Secretary brought four discrimination complaints on behalf of Levi Bussanich against Centralia Mining Company. Centralia argued that delays in the Secretary's investigation materially prejudiced its ability to defend two of the complaints. Judge Richard W. Manning dismissed the 1997 complaint because the delay was extraordinary and inherently prejudicial, but denied dismissal of the 1999 complaint because the company had not shown that the delay caused material legal prejudice. The order addressed only those two complaints and left the larger discrimination proceeding unresolved.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2) and 815(c)(3); 29 C.F.R. § 2700.50
• Outcome: Complaint No. DENV-CD-97-08 was dismissed, while Complaint No. DENV-CD-99-13 remained pending.
• Key point: Delay in processing a discrimination complaint can support dismissal when it causes material legal prejudice, but not when the alleged prejudice would have existed even within the statutory deadline.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                                      May 15, 2000

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-188-D
on behalf of LEVI BUSSANICH, :
Complainant : Centralia Coal Mine
:
v. : Mine I.D. 45-00416
:
CENTRALIA MINING COMPANY, :
Respondent :

ORDER GRANTING MOTION TO DISMISS COMPLAINT NO. DENV-CD-97-08
ORDER DENYING MOTION TO DISMISS COMPLAINT NO. DENV-CD-99-13

    This proceeding was brought by the Secretary of Labor on behalf of Levi Bussanich

against Centralia Mining Company (“Centralia”) under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801, et seq. (“Mine Act”) and 29 C.F.R. § 2700.50 et seq.
This case includes four discrimination complaints that Mr. Bussanich filed with the Department of
Labor’s Mine Safety and Health Administration (“MSHA”). In the first complaint, DENV-CD-
97-08, filed on January 28, 1997, Mr. Bussanich alleges that his foreman prevented him from
leaving the shop without a supervisor’s escort because he had raised safety issues with MSHA. In
the second complaint, DENV-CD-99-13, filed on February 16, 1999, Mr. Bussanich alleges that
he was treated disparately because the company would not accept a work release from his
physician when he was ready to return to work after a non-work related injury and he was also
required to take a drug test before he could return. In the third complaint, DENV-CD-99-22,
filed on August 23, 1999, Mr. Bussanich alleges that he was disparately subjected to a search of
his vehicle at the mine. In the fourth complaint, DENV-CD-2000-06, filed December 18, 2000,
Mr. Bussanich alleges that he was terminated from employment at the Centralia Mine in violation
of section 105(c) of the Mine Act.

   The Secretary determined that Centralia violated section 105(c) with respect to each

complaint and notified Mr. Bussanich and Centralia of her determination on February 4, 2000.
The Secretary filed this case with the Commission on or about February 22, 2000. Centralia filed
a motion to dismiss the first two discrimination complaints that Mr. Bussanich filed with MSHA
because they are untimely and Centralia was materially prejudiced by the delay. It also contends
that Bussanich will not be materially prejudiced by the dismissal of the complaints. The Secretary
opposes Centralia’s motion. I consider the facts surrounding each complaint below.

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    I.      Complaint of January 28, 1997, DENV-CD-97-08

   Mr. Bussanich contends that he was prohibited from leaving the shop where he normally

worked to get supplies because his foreman told him that Anil Puri, a Centralia supervisor, did not
want him “out running around looking for more problems.” Mr. Bussanich states that he
contacted MSHA and met with an MSHA inspector on January 14, 1997, about safety concerns
he had at the mine. Bussanich maintains that Mr. Puri’s actions were in retaliation for his
protected activity. The Secretary did not make her determination that Centralia violated the Mine
Act with respect to this complaint until February 4, 2000.

     Centralia contends that the Secretary’s lengthy delay with respect to this complaint is so

extraordinary as to demonstrate prejudice per se. It also maintains the it was prejudiced, in fact,
by the delay because of changes that occurred at Centralia since Bussanich filed his complaint
with MSHA. In early 1998, Centralia’s parent company, PacifiCorp, was acquired by Scottish
Power. Scottish Power then sold Centralia to TransAlta in May 1999. TransAlta terminated
Centralia’s top managers including Mine Manager Bart Hyita and Human Resources Manager
Charles Schultz. Centralia contends that, although it could subpoena these two individuals to
testify at a hearing, it could not use them to prepare for trial. Centralia states that it is prejudiced
as a result.

    The Secretary states that the delay in processing this complaint “occurred primarily

because of investigation and personnel difficulties with the field special investigator assigned to
investigate this matter.” (S. Response at 2-3). She also cites the fact that Bussanich filed other
complaints in 1999 that were interrelated to this complaint. Finally, she maintains that Centralia
did not demonstrate that it was prejudiced by the delay. Centralia had a copy of the complaint
and interacted with MSHA during the investigation. She states that part of the delay was caused
by the fact that MSHA scheduled interviews of some Centralia employees to accommodate the
schedule of Centralia’s counsel. She argues that the change in ownership of the company and the
fact that some of the top managers no longer work for the company is insufficient to show
prejudice.

    It is clear that the Secretary violated section 105(c)(3) of the Mine Act by failing to notify

Mr. Bussanich of her “determination whether a violation ... occurred” within 90 days of receipt of
his complaint. It is also clear that this time-frame is not jurisdictional. The legislative history of
the Mine Act states that the deadlines imposed on the Secretary in section 105(c) are not
jurisdictional and that the failure of the Secretary to meet them “should not result in the dismissal
of the discrimination proceedings; the complainant should not be prejudiced because of the failure
of the Government to meet its time obligations.” S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 624 (1978).

    In interpreting the deadlines imposed on the Secretary in section 105(c), the Commission

concluded that the “fair hearing process envisioned by the Mine Act does not allow us to ignore
serious delay by the Secretary in filing a discrimination complaint if such delay prejudicially

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deprives a respondent of a meaningful opportunity to defend itself against the claim.” Secretary
of Labor for Donald R. Hale v. 4-A Coal Co., Inc., 8 FMSHRC 905, 908 (June 1986).
Accordingly, the Commission held that a discrimination complaint is subject to dismissal when the
Secretary fails to meet the statutorily imposed deadlines “if the [mine] operator demonstrates
material legal prejudice attributable to the delay.” Id. This test requires more than a mere
allegation of prejudice.

    The three-year delay with respect to this complaint was more that 12 times the length of

time set forth in the Mine Act. This delay is truly extraordinary. A delay of this length is
inherently prejudicial to a mine operator’s ability to defend itself against the allegations contained
in a discrimination complaint. The Secretary does not offer any justification for such a lengthy
delay. The affidavit attached to the Secretary’s response to the motion details the investigation
process in this case, but offers only bureaucratic excuses for the delay. The discrimination
complaint does not raise complicated issues. I find that the delay in this complaint was so
significant as to constitute prejudice per se. The memories of management personnel as well as
Mr. Bussanich will have faded over such a long period of time. Testimony about the events will
be inherently unreliable and, as a consequence, subject to fabrication.

     The Secretary alleges that Mr. Bussanich’s subsequent complaints complicated her review

of this complaint. It must be understood that Bussanich’s second complaint was filed two years
after his first complaint. Thus, MSHA had two full years to investigate his first complaint without
any such complications. The Secretary also blames Centralia for some of the delay. Centralia
denies this allegation. Even if I accept the Secretary’s contention that some interviews were
delayed at the request of counsel for Centralia, it cannot justify a three-year delay.

     It is important to recognize that Mr. Bussanich will not be significantly harmed by

dismissing this complaint. Mr. Bussanich was off work for an extended absence shortly after he
filed this complaint. He also transferred out of the shop in August 1997. It does not appear that
he was under any restrictions concerning travel around the mine for a significant period of time.
More importantly, he is no longer working at the mine. Even if Mr. Bussanich were to prevail on
this complaint, there is no remedy that I can offer him unless he prevails on his fourth complaint,
which would subsume any remedies available here. The only independent remedy that I would be
able to impose with respect to this complaint is a civil penalty for a violation of section 105(c) of
the Mine Act. The allegations contained in this complaint will still be admissible

   For the reasons discussed above, Centralia’s motion to dismiss complaint No. DENV-CD-

97-08, filed Bussanich on January 28, 1997, is GRANTED and the complaint is DISMISSED.

   II.     Complaint of February 16, 1999, DENV-CD-99-13

    Mr. Bussanich maintains that when he was released to return to work by his physician

following a non-work related injury, Dave Kendrick, his supervisor, told him to report to the mine
on February 5, 1999. Bussanich subsequently learned that Centralia wanted him to take a drug
test and meet with the company doctor before returning to work. Mr. Bussanich alleges that after

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he took the drug test, the company doctor released him to return to work without restrictions.
After Bussanich returned to work, he was sent home because, according to Bussanich, Mr. Puri
was “not happy with ... the doctor’s note.” Mr. Bussanich maintains that he was treated
differently than other similarly situated employees because he discussed safety matters with an
MSHA inspector. He also filed a grievance over the matter.

    Centralia argues that Charles Shultz was a principal decision maker and a witness to the

relevant events in this complaint. Mr. Shultz was terminated from Centralia’s employment when
TransAlta became its parent corporation in May 1999. Centralia argues that although it knows
where Messrs. Shultz and Hyita currently reside, these individuals are no longer available to help
it prepare a defense to this complaint of discrimination and may indeed be uncooperative because
they were terminated by TransAlta. Centralia states that without these two key managers on its
“defense team, even [Centralia’s] ability to respond to the Secretary’s discovery, much less
prepare [its] own defense, is badly compromised.” (C. Reply at 5). Centralia argues that the
Secretary’s delay in prosecuting this complaint materially prejudiced its ability to defend itself
against this complaint.

    The delay in this complaint was a little less than one year. During this year, Bussanich

filed two additional related discrimination complaints with MSHA. The events that Centralia
relies upon to demonstrate that it was prejudiced by the delay occurred within the 90-day period
set forth in the Mine Act. Thus, even if the Secretary had notified Bussanich within 90 days that
she determined that a violation of section 105(c) occurred, Messrs. Shultz and Mr. Hyita would
not have been available to help prepare Centralia’s defense. They were apparently terminated in
May 1999 and the 90-day period would have ended on or about May 17, 1999. By the time a
complaint and answer were filed and the case set for hearing, Messrs. Shultz and Hyita would be
no more available than they are at present. Accordingly, I find that Centralia has not
demonstrated material legal prejudice.

   For the reasons discussed above, Centralia’s motion to dismiss complaint No. DENV-CD-

99-13, filed by Mr. Bussanich on February 16, 1999, is DENIED.

                                         Richard W. Manning
                                         Administrative Law Judge




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Distribution:

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203-1954 (Fax and First Class Mail)

Thomas C. Means, Crowell & Moring, 1001 Pennsylvania Ave., NW Washington, DC 20004-
2595 (Fax and First Class Mail)

RWM

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