<DOC>
[DOCID: f:s95-125d.wais]

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SAN JUAN CEMENT COMPANY, INC.
AUGUST 25, 1995
SE 95-124-DM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           August 25, 1995

SECRETARY OF LABOR,              :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. SE 95-125-DM
    ON BEHALF OF                 :  SE MD 94-12
      BENITO OCASIO HERNANDEZ,   :
                    Complainant  :  Cantera Espinosa
                                 :
          v.                     :
                                 :
SAN JUAN CEMENT COMPANY, INC.,   :
                    Respondent   :

                               DECISION

Appearances:  James A. Magenheimer, Esq., Office of the Solicitor,
              U.S. Department of Labor, New York, New  York for the
              Complainant; Rafael  Cuevas Kuinlam, Esq., Hato Rey,
              Puerto  Rico for the Respondent.

Before: Judge Hodgdon

     This case is before me on a complaint of discrimination
brought by the Secretary of Labor on behalf of Benito Ocasio
Hernandez against San Juan Cement Company under Section 105(c) of
the Federal  Mine  Safety  and Health Act of 1977, 30 U.S.C.  815(c).
For the reasons set forth below, I find that, while Mr. Ocasio engaged
in  activities protected under the Act, the Respondent  was  not
motivated in any part by that activity in suspending him for eight
days.

     The case was heard on June 7 and 8, 1995, in Hato Rey,  Puerto
Rico.  Roberto Torres Aponte, Jose Luis Mojica, Marcos  E. Rivera
and the Complainant testified in support  of  his case.  Victoriano
Garcia Santiago, Florentino Coreano Moreno and Rolando Melendez
Santiago testified for the Respondent.The  parties  also  filed
briefs  which I have considered in my disposition of this case.


                          MOTION TO DISMISS

     As a preliminary matter, the Respondent argues that  this case
should  be dismissed because the Secretary  has not followed  his
own rules.  Specifically, the company contends that Commission
Rule 41(a), 29 C.F.R.    2700.41(a), which requires the
Secretary  to  file  a discrimination complaint "within 30 days
after his written determination that a violation has occurred"
(emphasis added),  was  not  complied  with  because  the company
never received such a written determination.  This argument is
without merit.

     Initially,  it should be noted that the rule in question  is
the  Commission's  and  not  the Secretary's so that the well settled
principle  of law that an administrative  agency  must  follow  it's
own rules  would  not be applicable in  this  case.  Secondly,
when read in conjunction with Section 105(c)(3) of the  Act,  30
U.S.C.  815(c)(3), which requires that "[w]ithin  90  days  of the
receipt  of  a  complaint  .  . . the Secretary shall notify, in
writing, the miner  .  .  . of his   determination  whether  a
violation  has occurred" (emphasis added), it is apparent that
the written  determination  referred to in Rule 41(a) is the
written determination  required by the Act to be given to the
Complainant.   Thus, there  is  nothing  in  either  the Act or
Rule 41(a) that requires a written determination  to be given
to the company.

     Finally,  although the record is silent concerning whether the
Secretary  filed  this complaint within 30 days of notifying the
Complainant  that  a violation had occurred, the Commission has
long held that the  time  limitations in discrimination  cases
are not jurisdictional  and  that  dismissal is only  appropriate
"if the operator demonstrates material  legal  prejudice
attributable to the delay."  Secretary on behalf  of  Hale v. 4-A
Coal  Company,  Inc.,  8  FMSHRC 905, 908 (June 1986) (citations
omitted);  see  also Secretary on behalf of Nantz v. Nally & Hamilton
Enterprises,  Inc.,   16   FMSHRC   2208,  2215 (November  1994);
Boswell  v. National  Cement Co.,  14 FMSHRC 253, 257 (February
1992).   In this case,  the  Respondent has not alleged any
prejudice resulting from its failure  to receive  a  written
determination, and, in fact, has admitted that  it  was  not
prejudiced  by not receiving a written determination.  (Tr.1,  87-
8.)[1]

     The  Respondent's  claim  that the failure of the Secretary to
provide it with  a written determination that a violation  occurred
should   result   in  the dismissal  of  the complaint is
unsupported  by either the facts  or  the  law.  Therefore, the
motion to dismiss is DENIED.

                           FACTUAL SETTING

     The basic facts are not disputed.  On April 18, 1994,
Victoriano Garcia, a maintenance foreman, told Luis Mojica,
a mechanic, and Benito Ocasio, his helper, to go the ash silo
and retrieve a vibrator for use in another  part of the plant.
Although  Mojica  and  Ocasio  were  apparently aware  that  the
silo was in a restricted  area due to dangerous conditions, they
both proceeded  to  the  area.   On  arriving,  they discovered
the  area blocked off by pylons and yellow  ribbons.   Unable
to   perform  their duties,  they  returned to the locker  area  to
await further assignment.   Garcia was informed that the vibrator
was not obtained  because the area could not be entered.

     On  April  20, 1994, Garcia assigned Mojica and Ocasio,  along
with Marcos Rivera, a welder, to repair a screw conveyor.   While
waiting for the acetylene for the  welder to  be  brought  to  the
conveyor, Ocasio  took  a  piece  of  steel  to the heavy equipment
shop to have it cut into a  plate  to be used for heating food.  When
Garcia observed Ocasio in the shop, he told Ocasio to return to
his workplace.  Ocasio did so.

     Shortly  thereafter,  Ocasio saw Garcia coming by the conveyor
and called  him over.  A confrontation over the incident in the
shop  ensued resulting in both parties  accusing  the  other of a lack
of respect.

     Garcia reported this confrontation to his supervisor,
Florentino Coreano.   Coreano  asked  Garcia to make  a written
report of the incident.   After consulting  with Rolando Melendez,
the Director of Human Resources  and  Industrial  Relations, Coreano
went   to  where  Ocasio  was  eating breakfast,  told  him   he  was
suspended  and directed him to go to Melendez' office with his union
delegate.

     Melendez discussed the incident with Ocasio  and  his delegate
in  his  office.   At  that time, Melendez  had Garcia's written report
and  some notes he had made  on  the  report  based  on his  telephone
conversation  with  Coreano.   (Comp.  Ex.  2.)  Melendez informed
Ocasio that he  was suspended until  a  meeting with the union was
held  the next day, April  21,  at  which  time a further decision
on discipline would be made.

     The  meeting with union was held on April 21, but  Ocasio  did not
appear, so his case was not discussed.  At the next  meeting, April
29, Ocasio was present along  with   Garcia,  Mojica,  Marcos  Rivera,
Coreano and the union officials.  After interviewing  the witnesses,
Melendez concluded that an eight day suspension was sufficient and
terminated it.

     The April 18 episode concerning the aborted attempt to get the
vibrator was not  mentioned  by  any  party  at either the April 20
or April 29 meeting with Melendez.  However, by April 29 Melendez
was  aware  that Ocasio was claiming that his suspension was the
result  of  his refusal to enter the restricted area to obtain  the
vibrator because Ocasio had filed a discrimination  complaint with
the Mine Safety  and  Health  Administration  (MSHA)  on April 21,
(Resp. Ex. N.),  and  the company had been informed of the complaint
sometime  before April 29.


               FINDINGS OF FACT AND CONCLUSIONS OF LAW

     In  order  to  establish  a prima facie case of discrimination
under Section  105(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected  activity
and (2) that the adverse action complained of was  motivated
in  any  part  by that activity.  Secretary  on behalf of Pasula
v.  Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd  on other
grounds sub nom. Consolidation Coal Co.  v.  Marshall,  663
F.2d  1211  (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC  803  (1981);  Secretary  on  behalf  of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge  Corp.,  3  FMSHRC  2508
(1981), rev'd on other grounds sub nom. Donovan  v. Phelps Dodge
Corp., 709 F.2d 86 (D.C. Cir. 1983).

     The operator may rebut the prima facie case by showing  either
that no protected activity occurred or that the adverse action was
in no part motivated by  the protected  activity.  Pasula, 2 FMSHRC
at 2799-800.  If the  operator  cannot  rebut the prima facie case
in this manner, it nevertheless  may defend  affirmatively  by
proving  that it was also motivated by the miner's unprotected
activity  and  would  have  taken  the  adverse action for the
unprotected activity alone.  Id. at 2800; Robinette, supra at 917-18.

     In this case, the Complainant argues that he engaged in
protected activity when he refused to enter the danger area in
the silo to retrieve  a vibrator and  that because of that
refusal, the company suspended him for eight days.  In response,
San Juan Cement avers that Mr. Ocasio was suspended for his
insubordination to his foreman two days later and maintains
that the suspension had nothing to do with his refusal to enter
a dangerous place.  Mr. Ocasio contends that the insubordination
is  merely  a  subterfuge  for action taken because of the protected
activity.  The evidence, however,  does  not  support  the
Complainant's  contention  that  his suspension was for having
engaged in protected activity.

     It is well settled that when a miner refuses to work in
conditions he believes,  reasonably and in good faith, to be dangerous,
his refusal is protected  under  the  Act.  Simpson v. FMSHRC,
842  F.2d  453  (D.C.  Cir.  1988);  Miller  v. FMSHRC, 687 F.2d 194
(7th Cir. 1982); Secretary on behalf of Pratt v. River Hurricane Coal Co.,
5 FMSHRC 1529 (September  1983); Secretary on behalf of Bush v. Union
Carbide Corp., 5 FMSHRC 993  (June  1983);  Haro v. Magma Copper Co.,
4 FMSHRC 1935 (November  1982); Robinette, supra.  Consequently, I
conclude  Mr. Ocasio engaged in protected  activity  when  he declined
to  go beyond  the  pylons  and  ribbons  marking  the danger area to
get the vibrator.

     However,  Mr.  Ocasio has failed to show that  his  subsequent
suspension  was motivated by that refusal.  The only evidence  to
support his claim is his own testimony and at every  significant
point  his testimony  is uncorroborated.  Furthermore, his portrayal
of  his  testimony  as  corroborated, when  in fact it was not, among
other  factors, reflects adversely on his credibility.

     Mr. Ocasio testified that  he and Mojica went to the silo area
as directed by  Garcia,  but  could  not  enter because  it  was
cordoned off.  He stated that Garcia came up to them  in  that area
and asked if the vibrator had been removed  and when they told him
that  it  had  not  because of the danger,  Mr. Ocasio "noticed that
he  [Garcia]  became very upset, and he removed his hardhat in  order
to throw it on the floor."  (Tr.1, 26.)

     The  Complainant  related  that he encountered Garcia later in
the afternoon  and  Garcia  again  told  him to remove  the vibrator.
He claimed that when  he again refused  because of the risk, Garcia said
"[t]hat if I didn't  remove  it,  I  would  pay dearly." (Tr.1,  29.)
Mr. Occasio testified that Mojica  was not present during this encounter.

     Concerning the same incident,  Mr.  Garcia  testified  that he
told Mojica and Ocasio to go to the silo to get the   vibrator  and
that  later  he  saw  them standing   near  the  silo  and  Mojica  yelled
"Garcia, it  says  that  you  can't  come  in." (Tr.1, 136.)  Garcia said
that he did not reply to   them,   but  "[s]ince  I  already  had  an
emergency, I decided  right  there to just keep walking and mention it to
Mr.  Felipe  Santiago that   there  was  an  emergency  dealing
with safety."    (Tr.1  137.)   He  denied  that  he insisted  that
the Complainant enter the restricted area or tell him that he would  "pay
dearly" if he did not.  (Tr.1, 138.)

     A third version of the incident was given by Mr. Mojica.  He
testified that Garcia directed Ocasio and him to go to the silo to
get  a vibrator, that when they got to the silo they found the area
cordoned  off,  so  they  returned  to the tool shed.  According to
Mr. Mojica, after the initial order he did not  see  Garcia again and
the Complainant, alone, "went  over there and told  Garcia  that  we
couldn't  go  into  the area because  it  was  fenced  in."  (Tr.2, 53.)
Mr. Mojica stated further  that Ocasio did not  "say  anything"  about
Garcia's response when  informed  that they could not get the vibrator.
(Tr.2, 54, 63.)  Finally, Mr.  Mojica  related  that  Garcia had never
mentioned the vibrator to him again, nor had  he  been subjected to any
type of adverse action for refusing to remove the vibrator.

     If Garcia had reacted as described by the Complainant, that is
taking  off his hat as if he was going  to  throw  it  on  the ground
and  accosting  Ocasio  a second time to insist that he retrieve the
vibrator and threatening that he would pay dearly if he did not,
then it would be  possible  to infer that there was  some connection
between the refusal and the suspension.  However, no other evidence
supports the Complainant's version.

     According  to Garcia and Mojica, the refusal to enter the silo
was not consequential.  In addition, Mojica was not present to
see Garcia become  angry  at the refusal as claimed by Ocasio.
Finally, if Ocasio was alone  when  he  told  Garcia that they
would not get the vibrator, and Garcia reacted angrily, and if
Garcia  later  threatened  Ocasio,  it is curious that  Ocasio
never  mentioned any of this to Mojica,  or  that  Mojica  was
never disciplined  for the refusal in view of Garcia's alleged
anger.

     Essentially, what the  evidence  in  this  case  shows, if the
Complainant's  testimony  is not accepted, as I do not,  is  a
refusal to enter an unsafe  area on April 18, and a suspension
on  April 20.  Other than the  proximity  in  time,  there  is
nothing  to  connect  one  with  the  other.   At the time the
Complainant was suspended by the personnel director  on  April
20, the personnel director was not even aware of the April  18
incident.  Nor did anyone, including Ocasio, mention it to Mr.
Melendez  when  he  met  with Ocasio and his union delegate to
inform them of the suspension.

     The Commission has held that  "[c]oincidental  timing  can  be
indicative  of  discriminatory  motivation."   Meek  v. Essroc
Corp., 15 FMSHRC 606, 612 (April 1993); Bradley v. Belva  Coal
Co., 4  FMSHRC  982,  992  (June  1982);  Chacon,  supra  at  2511.
However,  in  these  cases  there  were  other  indications of
discriminatory intent.  Here there is nothing else.

     Accordingly, I conclude that the Complainant has  not  met his
burden of proving that his suspension was based in any part on
his  refusal  to  enter  a  dangerous  area.   Furthermore,  I
conclude that even if Mr. Ocasio had established a prima facie
case,  the  company  has  successfully  rebutted  the  case by
proving  that  the  suspension  was for the confrontation with
Garcia on April 20 and not for the  refusal on April 18, which
the person suspending him did not even know about.

                                ORDER

     Since the Secretary has failed to show that Mr. Ocasio's eight
day suspension was, in any part, the  result of his refusal to
enter a restricted area, it is ORDERED that the complaint of
the  Secretary  filed  on  behalf of Benito  Ocasio  Hernandez
against San Juan Cement Company  under  Section  105(c) of the
Act is DISMISSED.


                                 T. Todd Hodgdon
                                 Administrative Law Judge
                                 (703) 756-4570


Distribution:

James  A.  Magenheimer,  Esq.,  Office of the Solicitor,  U.S.
Department of Labor, 201 Varick Street, Room 707, New York, NY
10014 (Certified Mail)

Rafael Cuevas Kuinlam, Esq., Cuevas,  Kuinlam & Bermudez, Hato
Rey Tower Bldg., Suite 903, 268 Munoz Rivera Avenue, Hato Rey,
PR  00918 (Certified Mail)

/lbk


**FOOTNOTES**

     [1]:  There is a separate transcript,  beginning  with  page
one,  for  each  day of the hearing.  Accordingly, the transcript
for June 7 will be  cited as "Tr.1" and the transcript for June 8
will be cited as "Tr.2."