Centralia Mining Company

Plain-English summary

Levi Bussanich sought temporary reinstatement after Centralia Mining Company separated him from his job at the Centralia surface coal mine. The Secretary alleged that the separation was connected to Bussanich's protected safety activity, while Centralia maintained that he had voluntarily quit during a phone call. Judge Richard W. Manning found that Centralia sincerely believed Bussanich had quit and that the evidence did not provide a colorable claim that the company discharged him for protected activity. He denied temporary reinstatement and dismissed the proceeding.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The application for temporary reinstatement was denied, and the proceeding was dismissed.
• Key point: Temporary reinstatement requires a nonfrivolous discrimination complaint, and the record did not show a colorable discharge by the operator.

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

                                     January 27, 2000

SECRETARY OF LABOR, MSHA : TEMPORARY REINSTATEMENT
on behalf of LEVI BUSSANICH, : PROCEEDING
Applicant :
: Docket No. WEST 2000-99-D
v. :
: Centralia Mine
CENTRALIA MINING COMPANY, :
Respondent :

      DECISION AND ORDER DENYING TEMPORARY REINSTATEMENT

Appearances: James B. Crawford, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia, for Applicant;
Timothy M. Biddle, Esq., Crowell & Moring, Washington, D.C., for
Respondent.

Before: Judge Manning

    This case is before me on an application for temporary reinstatement brought by the

Secretary of Labor on behalf of Levi Bussanich against Centralia Mining Company (“Centralia”)
under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2)
(the “Mine Act”). The application was filed on or about December 30, 1999. This case was
assigned to me on January 6, 2000, and Centralia requested a hearing within ten days of receipt
of the Secretary’s application. The application alleges that Centralia’s “decision to dismiss
Mr. Bussanich was premised on his exercise of a protected activity as described in section
105(c)(1) of the Mine Act” and that Mr. Bussanich’s discrimination complaint is not frivolous.
(Application at 2). A hearing in this temporary reinstatement proceeding was held in Tacoma,
Washington, on January 21, 2000. For the reasons set forth below, I find that the Secretary failed
to establish that the discrimination complaint was not frivolously brought.

                                  I. BACKGROUND

    The issue in a temporary reinstatement proceeding is very narrow. This case presents a

rather unique set of circumstances because Centralia alleges that it did not fire Mr. Bussanich but
that he quit his job. For this reason, a more detailed discussion of the factual background is
necessary in this case than is typical in a temporary reinstatement case.

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   Centralia operates a surface coal mine in Lewis County, Washington. Mr. Bussanich was

employed at the Centralia Mine for 14 years and worked as a welder for the previous 5 years. On
October 10, 1999, Mr. Bussanich sustained a back injury at work and was placed on workers’
compensation (“L & I leave”). On November 4, 1999, Rachel Woolley, Human Resources
Administrator with Centralia, sent a memorandum to Mr. Bussanich at his home seeking
information to determine if his leave is protected under the Federal Family and Medical Leave
Act (“FMLA”). (Tr. 88-89; Ex R-1). Attached to the memo was a U.S. Department of Labor
form entitled “Certification of Health Care Provider.” When he did not respond to her memo,
she sent a letter reminding Mr. Bussanich to have his attending physician complete and return the
form. (Tr. 90-91; Ex. R-2). The form was never returned by Mr. Bussanich.

    On November 30, 1999, Ms. Woolley received a phone call at her office from a man who

identified himself as Levi Bussanich. (Tr. 91-92, 95). The conversation lasted only about a
minute and ended at about 11:29 a.m. Within minutes of hanging up, Ms. Woolley recorded the
conversation as follows:

   Levi:          I have a few issues, I am not on FMLA, I am on L & I.
   Rachel:        I said actually they run at the same time so you are on FMLA.
   Levi:          It doesn’t matter, I got another job, so I quit, I’ll be out to pick up my
                  tools, all I need is my 401(k) money.
   Rachel:        Actually, you will need to talk to Sandy Wallace about that
   Levi:          O.K. fine
   Rachel:        What about a final check
   Levi:          I’ll take care of that, I got another job so that’s it, I am sick of this crap
   Rachel:        O.K. that’s fine

(Exs. R-3, R-4; Tr. 96-98).

    On December 3, 1999, Sandy Wallace, Senior Benefits Specialist for Centralia, sent

Mr. Bussanich a letter, which noted that he quit on November 30 and which asked Mr. Bussanich
to make arrangements to retrieve his tools from the mine and to schedule an exit interview to go
over his retirement benefits, 401(k), and other issues. (Ex. R-6A; Tr. 159). She enclosed two
checks with the letter: his final paycheck and a check for $1,740.62 representing his accrued
vacation pay. (Ex. R-6C). The checks were deposited by Mr. Bussanich on or about December
9, 1999. (Tr. 58, 183; Ex. R-10).

   On December 7, 1999, Mr. Bussanich sent a letter to Ms. Wallace stating that he is under

a doctor’s care for an on-the-job injury and that he did not quit. (Ex. G-1). The letter states:

                   I have not spoken directly to Rachel Woolley in many
           months. I did not call her on November 30, or any other time to
           say that I was quitting. I did not tell anyone else at CMC that I was
           quitting. I did not quit. I am not quitting.


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Id. Marjorie Taylor, Senior Human Resources Manager, sent a letter to Bussanich in response to
his letter stating that Centralia considered him to have quit on November 30. (Tr. 28).

     On December 23, 1999, Ms. Wallace conducted an exit interview with Mr. Bussanich by

telephone. (Tr. 44-45, 166). Mr. Bussanich expressed interest in getting the money from his
401(k) account and pension plan quickly. ( Tr. 168-71; Ex. R-8). He elected to take the entire
proceeds in cash and did not roll it over into an IRA. Mr. Bussanich testified that he needed the
401(k) money to support himself and pay off some of his debts, and that he could not take part of
it in cash and roll over the rest. (Tr. 45-47, 54-55, 68-69, 202). On or about December 28, 1999,
Mr. Bussanich received a check for $61,792, which is the net proceeds from his 401(k) account.
(Exs. G-4, R-8; Tr. 172).

  On December 18, 1999, Mr. Bussanich filed a discrimination complaint with MSHA.

The complaint recites the letter he received from Ms. Wallace, his response to the letter, and
Ms. Taylor’s reply. The complaint then states:

                  I was receiving labor and industries pay, I have not been
           released by my doctor to return to work, why would I quit.

                 I feel this is another attempt by the company to terminate
           my employment due to my earlier complaints due to safety at the
           mine.

    MSHA Special Investigator William Denning was assigned to investigate this complaint.

He interviewed Mr. Bussanich and Mr. John Gift, Jr., another welder at the Centralia Mine.
(Tr. 82). This application for temporary reinstatement was filed before interviews could be
arranged with Centralia management. (Tr. 149). As a consequence, no further interviews were
conducted, pending the results of this case.

    After this case was filed, Centralia served a subpoena on U.S. West, the local telephone

company, to determine where the phone call received by Ms. Woolley at about 11:29 a.m. on
November 30 originated. The letter and memorandum that she sent to Mr. Bussanich in
November concerning FMLA contained her private office phone number and she testified that
the call came in on that line and not the general mine telephone number. (Tr. 50, 187). Based on
information provided by U.S. West and GTE Northwest, it appears that the call originated from a
phone registered in the name of Kim Whisnant, who lives in Portland, Oregon. (Exs. R-11,
R-12; Tr. 191-92, 197).

   Mr. Bussanich owns and operates several businesses outside of his employment with

Centralia. (Tr. 66-67). One of these businesses is an independent video store in Olympia,
Washington. (Tr. 59). His business partner in that venture is Bradley Whisnant, the husband of
Kim Whisnant. (Tr. 48, 60, 198, 211). Counsel for Centralia subpoenaed Mr. and Mrs.
Whisnant to testify at the hearing in this case. Bradley Whisnant advised local counsel for

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Centralia, Mr. Paul Buchanan, that he would appear at the hearing. (Tr. 216-17; Ex. R-15).
Bradley Whisnant also told Mr. Buchanan that his home phone was registered in Kim’s name but
that she did not have any relationship with Centralia or Mr. Bussanich. (Tr. 211). Mr. and Mrs.
Whisnant failed to appear at the hearing.1

    At the hearing, Mr. Bussanich could not remember where he was or what he was doing

on November 30, 1999, but he denied making a call to Rachel Woolley and denied that he quit
his job. (Tr. 23, 25-26, 40, 54, 224). Mr. Bussanich testified that he owes Mr. Whisnant $75,000
because, under the terms of their business agreement, he is obligated to buy out Mr. Whisnant’s
share of the business. (Tr. 49, 60-61). Bussanich testified that on or about January 18, 2000,
after the subpoena was served on Mrs. Whisnant, Bradley Whisnant called him because he was
upset about the subpoena. (Tr. 48, 51, 61, 63). At that time, Whisnant told Bussanich that he
called the mine sometime in November to inquire about Bussanich’s employment status. (Tr. 50-
51, 63-64). Bussanich testified that Whisnant often called him at the mine. Whisnant also told
Mr. Buchanan that he called the mine sometime in November. (Tr. 212, 221).

   Bussanich testified that in November 1999 Whisnant was very concerned that Bussanich

would not have the money to pay him the $75,000 that he was owed. (Tr. 52). Bussanich and
Whisnant were at the video store in November when Bussanich threw the FMLA forms sent by
Ms. Woolley into the trash. Bussanich was angry that she sent the forms and, after starting to fill
them out, he threw them away. (Tr. 49, 56, 212). Apparently, Whisnant retrieved these papers
from the trash. (Tr. 50, 213).

    There is no dispute that Mr. Bussanich engaged in protected activity on many occasions.

He has three outstanding discrimination complaints pending before MSHA in addition to the
complaint discussed above. His first discrimination complaint, filed on February 11, 1997,
alleges that, after he raised safety concerns with an MSHA inspector, he was not permitted to
leave the welding shop while at work. Apparently, MSHA has not completed its investigation of
this complaint, despite the fact that almost three years have passed, and section 105(c)(3) requires
the Secretary to notify the complainant of the results of her investigation within 90 days of
receipt of the complaint.

   His second discrimination complaint, filed on February 19, 1999, alleges that, when he

was released by his doctor to return to work after a non-work related injury, the company would
not permit him to work because management was “not happy with the doctor’s note.” In the

   1
      At the hearing, Centralia moved to have the Commission enforce the subpoenas against

Mr. and Mrs. Whisnant. (Tr. 229-31). The Secretary opposes the motion. Section 113(e) of the
Mine Act and 29 C.F.R. § 2700.60(c) provide that a subpoena of a Commission judge may be
enforced in the U.S. District Court. Temporary reinstatement proceedings are heard on an expedited
basis and the issue in each case is very narrow. Enforcing the subpoena would require an additional
hearing to take their testimony and would delay my resolution of this proceeding. Because I am able
to resolve the issues in this case without their testimony, I deny the motion.

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complaint, he alleges that other employees were allowed to return to work with similar doctors’
releases and that he was treated differently because of the complaint he filed on February 11,
1997. He was eventually allowed to return to work. This complaint is still under investigation
by the Secretary.

    His third discrimination complaint, filed on August 26, 1999, alleges that he was forced

to allow a sheriff’s deputy to search his truck at the employee parking lot because someone
reported that he was seen putting a stolen CB radio in his truck. Apparently, someone called the
mine and reported that he had a company CB in his truck. (Tr. 134). The call may have been
made from someone at the mine. (Tr. 225). After the call was received, mine management
called the sheriff’s office and Bussanich’s truck was searched in his presence. Although he had a
new CB radio in his truck, he had purchased it and it was not stolen. The complaint alleges the
search was made “in retaliation [for] the (2) current complaints I have against the company with
MSHA.” This complaint is still under investigation by the Secretary.

    In addition to these pending discrimination complaints, Mr. Bussanich made other

complaints to MSHA inspectors and mine management about safety conditions at the mine.
(Tr. 34-39). In November 1999, while he was on L & I leave, Bussanich received a phone call
from John Gift, Jr., another welder at the mine. (Tr. 56, 72). Mr. Gift had just been fired by
Centralia and had filed a grievance under the collective bargaining agreement. Mr. Bussanich
advised Mr. Gift to file a discrimination complaint with MSHA. (Tr. 56, 72). Subsequently, the
parties settled Mr. Gift’s grievance; Mr. Gift was reinstated to his job; and the section 105(c)
complaint was withdrawn. (Tr. 71, 73). Centralia management was aware that Mr. Bussanich
advised Gift to file a complaint with MSHA. (Tr. 73). Mr. Bussanich testified that he filed a
grievance for his own alleged termination but his union representative advised him that he had
missed the deadline for filing a valid grievance. (Tr. 28-29).

      II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS

    Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any

protected right under the Mine Act. The purpose of the protection is to encourage miners “to
play an active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
181, 95th Cong., 1st Sess. 35 (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 623 (1978).

   “The scope of a temporary reinstatement proceeding is narrow, being limited to a

determination by the judge as to whether a miner’s discrimination complaint is frivolously
brought.” Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC
1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter Resources Inc. v FMSHRC, 920 F.2d 738

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(11th Cir. 1990). It is “not the judge’s duty ... to resolve ... conflict[s] in testimony at this
preliminary stage of proceedings.” Secretary of Labor on behalf of Albu v. Chicopee Coal Co.,
Inc., 21 FMSHRC 717, 719 (July 1999). At a temporary reinstatement hearing the judge must
determine “whether the evidence mustered” by the miner to date establishes that his complaint is
nonfrivolous, “not whether there is sufficient evidence of discrimination to justify permanent
reinstatement.” Jim Walter Resources, 920 F.2d at 747.

    Courts and the Commission and have equated the “not frivolously brought” standard

contained in section 105(c)(2) of the Mine Act with the “reasonable cause to believe standard” at
issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been equated with “not
insubstantial” and “not clearly without merit.” Jim Walter Resources, 920 F.2d at 747. The
legislative history of the Mine Act defines the “not frivolously brought standard” as whether a
miner’s complaint “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (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 624-25 (1978).

   At the start of the hearing, the parties entered into a number of stipulations, including the

following:

                   For purposes of this temporary reinstatement proceeding,
           Centralia Mining Company, by counsel, hereby stipulates that
           Complainant Levi Bussanich has in the past engaged in protected
           activity under the Mine Safety Act insofar as he filed, prior to
           November 30, 1999, three section 105(c) complaints against
           Centralia Mining Company, beginning in January 1997. Mr.
           Bussanich also filed a complaint on December 18, 1999. These
           complaints ... all apparently remain under investigation by MSHA.

                   Although Centralia Mining Company denies that it has
           taken any adverse action against Mr. Bussanich on account of these
           protected activities, or any other alleged protected activities,
           Centralia Mining Company stipulates that for purposes of this
           temporary [reinstatement] proceeding only, if there is a reasonable
           evidentiary basis that Centralia Mining Company has discharged
           Mr. Bussanich, then the allegation that Centralia Mining Company
           did so on account of Mr. Bussanich’s protected activities is not
           frivolous. That, therefore ... is the sole issue for hearing, whether
           there is a colorable claim that Mr. Bussanich was discharged.

(Tr. 5-6).

 Ms. Woolley testified that she is certain that it was Mr. Bussanich who called her on

November 30, 1999, because she recognized his voice and he spoke knowingly about his

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employment situation, his 401(k) plan, and his tools. (Tr. 91-92, 95, 106). Immediately after she
hung up, she discussed the call with Centralia’s safety director, Ralph Sanich, and subsequently
with Ms. Taylor. (Tr. 98, 102, 119, 180). Mr. Thomas Means, of the law firm of Crowell and
Moring, was called by Mr. Sanich to seek his advice. (Tr. 102, 120, 138-39). Mr. Means was
called on a speaker phone and Ms. Woolley was in the room during this conversation. Means
asked whether the mine accepted oral resignations from employment. (Tr. 140-41). When
Mr. Sanich replied in the affirmative, Mr. Means advised the company to treat Mr. Bussanich no
differently than any other employee who resigns in such a manner. (Tr. 105, 110, 140-42, 153).

    For purposes of this proceeding, I assume that Mr. Bussanich did not call Ms. Woolley to

quit his job on November 30, 1999. I find, however, that the uncontroverted evidence establishes
that Centralia management sincerely believed, and continues to believe, that Mr. Bussanich
voluntarily quit his job on November 30, 1999. (Tr. 91-92, 122, 184). All of their actions from
November 30 to the present are premised on that belief.2

    Centralia did not fire Mr. Bussanich. Centralia separated him from his employment

because it understood that he called the mine and quit his job. Given that Centralia management
acted on the understanding that Mr. Bussanich quit his job, there is no colorable claim that he
was discharged by Centralia for his protected activity. There is no evidence to support a theory
that Centralia fired Mr. Bussanich, even accepting the Secretary’s evidence. Consequently, there
is no reasonable cause to believe that he was terminated from his employment as a result of his
protected activity. The Secretary failed to show that the complaint is nonfrivolous.

    In section 105(c) cases, the judge must bear in mind that “direct evidence of motivation is

rarely encountered; more typically, the only available evidence is indirect.” Secretary of Labor
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev’d on
other grounds, 709 F.2d 86 (D.C. Cir 1983). “Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence.” Id. (citation omitted).
Although, in this temporary reinstatement case, the Secretary need only show that the evidence
mustered to date establishes that the complaint is nonfrivolous; she must present a colorable
theory of the case. The discrimination complaint must “appear to have merit.” There has been
no showing that Mr. Bussanich’s discrimination complaint of December 18, 1999, has any merit.

    I consider one other theory that the Secretary did not argue or present at the hearing. One

could argue that, although he was not discharged from his employment, Centralia violated
section 105(c) when it failed to rehire Mr. Bussanich upon receipt of his letter of December 7,

   2
      Mr. Biddle expressed Centralia’s theory as to why it believes that Mr. Bussanich quit his

job. It alleges that he wanted to cash out his 401(k) plan so he could pay the debt he owed Mr.
Whisnant and then he filed a discrimination complaint to get his job back. (Tr. 236-37). I make no
findings on this allegation and my decision is not based on any consideration of the allegation. I
mention the allegation merely to show what Centralia expressed at the hearing as a reason why it
contested the application for temporary reinstatement in this case.

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1999, explaining that he did not actually quit his job. The theory would be that Centralia failed
to reinstate him at that time because of his protected activity. The discrimination complaint does
not contain such an allegation; the Secretary did not argue this point at the hearing; and the
record contains no evidence to support it. The evidence of record establishes that Centralia
treated Mr. Bussanich in the same manner as other employees who orally quit their jobs.
Mr. Sanich knew of no situations in which a miner quit his job and then was rehired because his
resignation had been a mistake. (Tr. 127).

                                      III. ORDER

   For the reasons set forth above, the application for temporary reinstatement filed by the

Secretary of Labor or behalf of Levi Bussanich against Centralia Mining Company under section
under section 105(c)(2) of the Mine Act is DENIED and this proceeding is DISMISSED.

                                         Richard W. Manning
                                         Administrative Law Judge

Distribution:

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

Timothy M. Biddle, Crowell & Moring, 1001 Pennsylvania Ave., NW Washington, DC 20004-
2595 (Facsimile Transmission and Certified Mail)

RWM

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