.
CENTRALIA MINING COMPANY
May 15, 2000
WEST 2000-188-D
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 DENYING RESPONDENT'S MOTION FOR PARTIAL SUMMARY DECISION
This discrimination 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.
On or about December 28, 1999, the Secretary filed an
application for temporary reinstatement on behalf of Mr.
Bussanich in WEST 2000-99-D, under section 105(c)(2) and
29 C.F.R. � 2700.45. In a temporary reinstatement
proceeding, the Secretary has the burden of proving that
the miner's complaint of discrimination was not
frivolously brought. Centralia requested a hearing in
the temporary reinstatement case. A hearing was held
before me on January 21, 2000. In my decision issued
January 27, 2000, I held that the Secretary did not meet
her burden of proof because she failed to establish a
colorable claim that Bussanich was terminated from his
employment. Secretary of Labor o/b/o Bussanich v.
Centralia, 22 FMSHRC 107. My decision was affirmed by
the Commission, 22 FMSHRC 153 (Feb. 2000).
Centralia filed a motion for partial summary decision in
the present proceeding. It contends that the issue of
whether Bussanich was discharged on account of protected
activity was adjudicated adversely to the Secretary in
the temporary reinstatement case. As a consequence, it
argues that Mr. Bussanich's fourth discrimination
complaint, DENV-CD-2000-06, must be dismissed.
In support of its motion, Centralia argues that the
Secretary is collaterally estopped from relitigating the
same issue that was decided in WEST 2000-99-D. Centralia
maintains that the doctrine of collateral estoppel
precludes the Secretary's attempt to relitigate the issue
of whether Bussanich was terminated from his employment
and Centralia is not obligated to again rebut the
Secretary's allegation. It argues that since the
Secretary's burden of proof was lower in the temporary
reinstatement case, collateral estoppel clearly bars a
"second bite at the apple." (C. Motion at 7). Since the
Secretary was unable to prove that Bussanich's
discrimination complaint was not frivolous, collateral
estoppel precludes her from trying to establish, by a
preponderance of the evidence, that Bussanich was
discharged by Centralia because of his protected
activities.
Centralia further argues that, even though temporary
reinstatement proceedings are expedited, the Secretary
could have investigated Bussanich's fourth complaint more
thoroughly, as recommended by Centralia, prior to
bringing that action. The Secretary chose to bring the
temporary reinstatement case before MSHA's investigators
interviewed Centralia managers or reviewed the company's
documents. Thus, it contends that the Secretary had the
opportunity to more fully investigate the facts prior to
the temporary reinstatement hearing but chose not to do
so. Centralia argues that the Secretary's opportunity to
litigate the merits of the discharge claim in the
temporary reinstatement proceeding was the substantial
equivalent of what is available in the present case so
that principles of collateral estoppel should be applied.
The Secretary opposes Centralia's motion. She contends
that MSHA's investigators discovered new evidence after
the temporary reinstatement hearing. She also states
that she has initiated discovery against Centralia which
may also lead to new evidence that was not available for
a temporary reinstatement hearing. Thus, the Secretary
argues that, because there are genuine issues of fact in
dispute in the present case, a motion for partial summary
decision is not proper under 29 C.F.R. � 2700.67(b)(1).
The Secretary states that the Commission, in affirming my
temporary reinstatement decision, held that its decision
has "no bearing on the ultimate merits of the case." 22
FMSHRC at 159, n. 8 (citation omitted). The Secretary
argues that she should not be bound by the evidence
presented at a separate hearing having a different and
narrower purpose. The hearing in a temporary
reinstatement proceeding should not become the hearing on
the merits of the underlying discrimination complaint
because "full discovery and examination of the evidence"
is not expected and "would be contrary to the legislative
purpose for providing temporary reinstatement." (S.
Response at 10). The Secretary maintains that if the
Secretary were required to present a fully developed
case at a temporary reinstatement proceeding in order to
avoid the risk of being collaterally estopped in the
discrimination case, the complainant would be put in a
difficult financial position. Rather than being
reinstated on an expedited basis, the complainant would
have to wait until MSHA's investigation is virtually
complete before he could be reinstated. The mine
operator would have a great incentive to delay the
investigation by refusing to cooperate with MSHA
investigators.
Finally, the Secretary focuses on the purpose for
temporary reinstatement and the legislative history of
section 105(c) of the Mine Act. She maintains that
Congress intended that temporary reinstatement occur as
soon as possible to the benefit of the complaining miner.
The Secretary maintains that collateral estoppel should
not be applied in these circumstances.
I agree with the arguments presented by the Secretary.
This case presents rather unique facts that will
infrequently arise. It is important to understand that,
although a temporary reinstatement case is related to the
underlying discrimination case, they are two separate
cases with distinct functions. The same issue is not
litigated in both cases. Although the Secretary's burden
of proof is easier to meet in the temporary reinstatement
case, the nature of that case is much narrower. The
language of section 105(c)(2) of the Mine Act is
instructive. That provision states that, upon receipt of
a complaint of discrimination, the Secretary shall
forward a copy of the complaint to the respondent and
cause an investigation to be undertaken. This provision
goes on to state:
Such investigation shall commence within 15 days of
the Secretary's receipt of the complaint, and if the
Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon
application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary
determines that the provisions of this subsection
have been violated, he shall immediately file a
complaint with the Commission ....
This provision clearly contemplates that the Secretary
seek reinstatement as quickly as possible before her inves-
tigation is completed. The legislative history supports my
interpretation, as follows:
Upon determining that the complaint appears to
have merit, the Secretary shall seek an order of the
Commission temporarily reinstating the complaining
miner pending final outcome of the investigation and
complaint. The Committee feels that this temporary
reinstatement is an essential protection for
complaining miners who may not be in the financial
position to suffer even a short period of unemploy-
ment or reduced income pending the resolution of
the discrimination complaint.
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).
Neither the Mine Act nor the legislative history speak of
a right to a hearing in cases of temporary reinstatement.
Initially, the Commission's procedural rules did not
provide mine operators with a right to challenge an order
of temporary reinstatement in a formal hearing. This
right was added in response to a Sixth Circuit Court of
Appeals decision. Subsequently, in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987), the Supreme Court
held that a temporary reinstatement provision in the
Surface Transportation Assistance Act satisfied due
process even though employers were not provided with the
right to a hearing on the issue.[1]
The Commission affords mine operators the right to
challenge temporary reinstatement orders in a formal
hearing. Nevertheless, the focus of the hearing is quite
narrow: whether the Secretary presented sufficient
evidence to show that the miner's discrimination
complaint was not frivolously brought. The temporary
reinstatement hearing is not a trial on the merits of the
discrimination complaint and it cannot even be deemed a
mini-trial on that issue. Temporary reinstatement is
sought so that the complaining miner will not have "to
suffer even a short period of unemployment or reduced
income" pending the resolution of the discrimination
complaint. The Secretary would be shirking her duty if
she sought temporary reinstatement only after MSHA
completed its investigation or only after she had
sufficient information to present a prima facie case of
discrimination.
Given this mandate, it is clear that the Secretary will
not have sufficient facts at the time of a hearing in a
temporary reinstatement case to be bound by the concept
of collateral estoppel in the subsequent discrimination
proceeding. MSHA's investigation will not be complete
and there is insufficient time to develop the case
through discovery. In most cases, of course, this issue
will not arise because the Secretary's burden of proof is
so low in temporary reinstatement proceedings. But in
those few cases where the Secretary does not prevail in a
temporary reinstatement case, issue preclusion should not
apply because the issues in a discrimination case are not
reached in a temporary reinstatement case.
It is important to recognize that when the Secretary
prevails in a temporary reinstatement proceeding, the
holding of the administrative law judge in that case "has
no bearing on the ultimate merits" on the underlying
discrimination proceeding. 22 FMSHRC at 159, n. 8
(citation omitted). Likewise, when the Secretary does
not present sufficient evidence to meet her burden of
proof in a temporary reinstatement case, the judge's
holding denying temporary reinstatement should not have
any bearing on the ultimate merits of the discrimination
case.[2] The complaining miner should not have his
discrimination complaint dismissed simply because the
Secretary was not able to sufficiently marshal the facts
in the temporary reinstatement hearing. Although the
Secretary is a party in temporary reinstatement and
discrimination proceedings, she is fundamentally
representing the complaining miner so his interests are
paramount.
For the reasons set forth above, Centralia's motion
for partial summary decision is DENIED.
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 (Fax
and First Class Mail)
Thomas C. Means, Crowell & Moring, 1001 Pennsylvania Ave., NW
Washington, DC 20004- 2595 (Fax and First Class Mail)
RWM.
[1] A more detailed history of the Commission's Procedural
Rule in temporary reinstatement proceedings is presented in the
dissenting opinion of Commissioners Marks and Beatty in the
temporary reinstatement proceeding. 22 FMSHRC at 162-63.
[2] The parties can use the transcript from the temporary
reinstatement hearing in the discrimination case. For example, a
party may attempt to demonstrate, on cross-examination, that a
witness made prior inconsistent statements while under oath.