.
ASARCO INCORPORATED
December 8, 2000
WEST 99-188-DM

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

                        December 8, 2000

DAVID MORALES,                  : DISCRIMINATION PROCEEDING
               Complainant      :
                                : Docket No. WEST 99-188-DM
          v.                    :
                                : Mission Mine Complex
ASARCO INCORPORATED,            :
               Respondent       : Mine I.D. 02-02626

                      DECISION AFTER REMAND

Before: Judge Manning

     This case is before me on a complaint of discrimination
brought by David Morales against Asarco Incorporated ("Asarco")
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 815(c)(3) (the "Mine Act").  The complaint
alleges that Asarco terminated Mr. Morales on August 13, 1998, in
violation of section 105(c).  A hearing in this case was held in
Tucson, Arizona.  In a decision issued on May 8, 2000, I held
that Mr. Morales did not establish a violation of section 105(c)
of the Mine Act and I dismissed his discrimination complaint.  22
FMSHRC 659.

     Mr. Morales appealed my decision to the Commission.  On
August 30, 2000, the Commission vacated my decision and remanded
the case to me to "determine whether any attempt was made [by
Asarco] to influence [Tony] Rivera's testimony as alleged in the
petition, and if so, whether any such conduct had a material
effect on the outcome of the proceedings before the judge."  22
FMSHRC 947, 948.  Mr. Rivera testified at the hearing in this
case on December 15, 1999.  His testimony was quite brief.  (Tr.
113-18).  Mr. Rivera testified regarding events that occurred on
Interstate 19 on March 20, 1998, when Ken Dickey, an Asarco
hourly employee who was driving another vehicle, displayed a
handgun to Mr. Morales as they were driving down the freeway.
Rivera also testified regarding the events that occurred in the
company parking lot and at the mine after Mr. Morales and Mr.
Dickey arrived that day.  He also stated that he was aware that
Morales complained about fumes in his truck and that he did not
know whether Asarco supervisors took any action against Mr.
Morales for his complaint. Although Mr. Morales called Mr. Rivera 
as a witness and examined him on direct and redirect, Morales did 
not ask Rivera detailed questions about Morales's health complaint, 
the circumstances of his termination, or Asarco's treatment of
employees.

     In his petition for discretionary review to the Commission,
Mr. Morales attached written statements of Mr. Rivera and Rito
Orrantia, another witness at the hearing.  Mr. Rivera's statement
is as follows, as edited for spelling errors:

               The day of David Morales's court, Mr.
          Jim Coxon told me not to say anything about
          safety or anything about the mine.  I think
          that this is not right because I didn't
          testify freely.

Mr. Orrantia's statement is as follows, as edited for spelling
errors:

               My name is Rito Orrantia, Jr.  I was a
          witness for David Morales but before I went
          into the courtroom, me and Tony Rivera met
          Jim Coxon right outside the courtroom doors.
          I overheard Jim Coxon tell Tony Rivera not to
          say anything about what goes on at the mine.
          The underground is a whole different
          department.

Mr. Coxon, the industrial relations manager at the Mission Mine
complex, testified at the hearing on behalf of Asarco.

     The focus of the Commission's remand is quite narrow:
whether Asarco made any attempt to influence Mr. Rivera's
testimony and, if so, whether any such conduct had a material
effect on the outcome of the case.  The Commission stated that I
could, in my discretion, hold a hearing on this issue, if
appropriate.

              I.  SUMMARY OF THE PARTIES' ARGUMENTS

     On September 6, 2000, I ordered Asarco to respond to Mr.
Morales's allegations.  In a response filed on September 29,
2000, Asarco made a number of arguments in support of its
position that Mr. Coxon did not take any action, intentional or
unintentional, that could be viewed as an attempt to influence
witness testimony at the hearing.  A declaration signed by Mr.
Coxon was attached to Asarco's response.  In his declaration, Mr.
Coxon provided the following explanation for the events that
transpired outside the courtroom.  During the entire time that
Morales was employed at Asarco's Mission Mine Complex, Rivera
worked in the underground mine.  Mr. Morales, on the other hand,
worked on the surface during his employment.  As a consequence,
Messrs. Morales and Rivera never worked in the same areas of the
Mission Mine Complex during their employment.

     Mr. Coxon stated that because he is the head of the mine's
human resources department, he was familiar with Mr. Morales's
case and he knew all of the witnesses Mr. Morales called to
testify.  When he arrived at the courthouse, he said hello to
everyone and several of these employees asked why they were
called to testify.  Mr. Coxon told them that Mr. Morales, not
Asarco, had called them and that they should simply tell the
truth when asked questions at the hearing.  Mr. Coxon denies that
he instructed anyone how to testify at the hearing.

     With respect to Mr. Rivera, Mr. Coxon recalls exchanging
greetings and that Mr. Rivera asked why he was called because he
did not know anything about Mr. Morales's case.  Coxon recalls
that Mr. Rivera was concerned because he worked underground and
he did not understand what Mr. Morales's case had to do with the
underground mine.  Mr. Coxon states that, although he cannot
remember his exact words, he told Mr. Rivera that Mr. Morales's
case "had nothing to do with the underground ... or with safety
in the underground."  (Coxon Declaration 3).  He does not recall
having any further conversation with Mr. Rivera.  Coxon stated
that because he frequently must testify at administrative
hearings and arbitrations, he is "careful to avoid any discussion
with any potential witnesses that could be misinterpreted by them
as any attempt to influence testimony."  Id. at 4.

     Asarco also argues that neither Mr. Rivera's nor Mr.
Orrantia's testimony "was material to the trial or to the
resolution of the case."  (Asarco Response 6).  It contends that
their testimony was limited to a few minor issues so that, even
assuming that they felt intimidated by Mr. Coxon's presence or
his conversation prior to the hearing, his conduct did not have
"a material effect on the outcome of the proceedings."

     On October 6, 2000, I ordered Mr. Morales to reply to
Asarco's response.  In his reply, Mr. Morales raises a whole host
of issues, most of which are outside the boundaries of this
remand.  For example, he believes that the MSHA official who
investigated his discrimination complaint was biased against him.
I do not fully understand many of his other arguments.  He makes
several references to the fact that Asarco is now a wholly-owned
subsidiary of Grupo Mexico S.A. de C.V.  As it relates to the
issue on remand, Mr. Morales states that Mr. Coxon intimidated
his witnesses not to give "details pertinent to safety."  (Reply
2).  As a consequence, Mr. Morales states that these witnesses
did not speak freely at the hearing.

     Because Mr. Morales believes that he was not given a fair
hearing, I also consider in this decision the major issues raised
by Mr. Morales that are outside the boundaries of the
Commission's remand order.  These arguments are discussed below.

   II.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

     In discussing the issues raised in the Commission's remand,
it is important to understand the configuration of the courtroom.
The hearing was held in a U.S. Bankruptcy courtroom that was
located in a commercial office complex.  This office complex was
a series of two-story stucco buildings built around a plaza.  The
second floor of each building was accessed by an outside elevated
walkway.  This walkway functioned as the corridor for the second
floor.  When entering the building, one stepped into a rather
cramped room that contained a small desk for the security guard,
several chairs, and security devices.  The courtroom opened
directly into this room.  I sequestered the witnesses at the
hearing.  As a consequence, if a witness were to be called within
a relatively short period of time, he waited his turn in this
small room or on the outside walkway.  The weather was pleasant
the day of the hearing.

     In addition to testifying, Mr. Coxon was also Asarco's
designated representative at the hearing.  Thus, he sat next to
counsel for Asarco during the entire trial.  The hearing started
at 9 am and all of Mr. Morales's witnesses arrived at that time.
The conversation between Messrs. Coxon and Rivera occurred on the
first day of the hearing, either as the witnesses arrived or
during a break in the proceedings.

     It is also important to understand a little about Asarco's
Mission Mine Complex.  Although I do not have detailed knowledge
of all of the activities that occur there, I do know that there
is an underground mine and an open pit operation.  There are also
other surface facilities at the Mission Mine Complex that are
involved in mineral milling.  When individuals at the Mission
Mine Complex speak of  "the mine," they are usually referring to
the underground mine.  Thus, someone who works in the open pit
does not work in "the mine."  The open pit is referred to as "the
pit" or by other names associated with certain areas of the pit,
such as the Mission Ramp.  (Tr. 454).

     As stated above, Mr. Rivera worked in "the mine," while Mr.
Morales worked in the pit.  In his statement, Mr. Rivera said
that Coxon told him not to say "anything about safety or anything
about the mine."  Mr. Coxon states that he told Mr. Rivera that
the case "had nothing to do with the underground ... or with
safety in the underground."  It is possible that Coxon used the
word "mine" rather than "underground" when talking with Rivera.
Coxon said these words after Rivera asked him why he was called
to testify because he worked underground, not with Morales.
Thus, when put in context, it appears that, at most, Coxon told
Rivera not to talk about conditions in the underground mine.
This interpretation is supported by Mr. Orrantia's statement. He
said that he overheard Coxon tell Rivera "not to say anything
about what goes on at the mine."  He then said "[t]he underground
is a whole different department."  Thus, it appears that he used
the term "mine" in his statement to mean the underground mine.
The evidence indicates that Mr. Coxon did not intentionally
attempt to influence the testimony of Mr. Rivera with respect to
the issues raised in Mr. Morales's complaint of discrimination.
I credit Mr. Coxon's declaration in this respect.  It appears
that he was attempting to assure Mr. Rivera that he need not
testify about any concerns he might have with respect to the
underground mine.

     Nevertheless, it appears from the face of Mr. Rivera's
statement that he believed that he could not "speak freely" at
the hearing as a direct result of Mr. Coxon's statements. I 
also note that most employees will feel nervous and somewhat
intimidated if they are required to testify under subpoena about
employment issues in front of their employer's human resources
director. For the reasons set forth below, I find that even if
Mr. Rivera felt intimidated by Mr. Coxon's statements and
believed that he could not speak freely at the hearing, this fact
had no material effect on the outcome of this proceeding.

     Mr. Morales called Mr. Rivera to testify on his behalf.  Mr.
Morales asked Mr. Rivera detailed questions about the incident
that occurred on the Nogales Highway (I-19) on March 20, 1998,
involving Ken Dickey, another Asarco hourly employee.  (Tr. 114-
16).  This incident is described at 22 FMSHRC 662-63.  Mr. Rivera
was in a separate car that was behind Morales's car and Dickey's
truck.  He testified about what he observed.  With the exception
of one question, Mr. Morales limited his questioning of Mr.
Rivera to that incident.  Morales also asked Rivera if he was
aware of Morales's MSHA complaint about fumes in the cab of his
truck.  Rivera stated that all he knew about the complaint was
what Morales had previously told him.  (Tr. 116).  Morales did
not ask Rivera anything else about his health complaint or about
working conditions at the Mission Mine Complex.  Morales also did
not ask him any questions concerning Asarco's treatment of
employees at the Mission Mine Complex.  After cross-examination,
Mr. Morales asked Mr. Rivera on redirect whether he was
intimidated by Asarco when he came to testify.  (Tr. 118). 
Mr. Rivera replied, "No, they didn't say nothing much."  Id.

     For purposes of this decision after remand, I assume that
Mr. Rivera believed that he was instructed by Mr. Coxon not to
talk about safety and health issues at the Mission Mine Complex
or the treatment of employees by Asarco.  I find, however, that
Mr. Coxon's instruction did not have any effect on the outcome of
the proceeding because Rivera was not asked any questions by Mr.
Morales about these issues.  Morales only asked him about the
incident on the highway, the subsequent related events at the
mine, and whether he was aware of his MSHA health complaint.  I
also take into consideration the fact that I did not discuss Mr.
Rivera's testimony in my decision in this case, except that I
mentioned Rivera's description of a comment Dickey made to
Morales in the parking lot when they arrived at the Mission Mine
Complex on March 20, 1998.  (22 FMSHRC 663; Tr. 115).  His
testimony was not significant in my resolution of the issues.

     In reviewing the transcript on remand, I notice that
Asarco's counsel, David Farber, asked questions on cross-
examination that arguably went beyond the scope of Morales's
direct examination.  In the interest of fairness, I hereby strike
from the record the cross-examination questions and answers at
page 117, line 2 through page 118, line 5 of the transcript.  If
Mr. Rivera was influenced in any way by Mr. Coxon's comments at
the courthouse, it would have been in answering these questions.

     As stated above, Mr. Morales raised issues in this remand
proceeding that are outside of the Commission's remand order.
Morales notes that the caption of this proceeding contains the
words "DISCRIMINATION PROCEEDING," but that I would not allow him
to introduce all of the evidence that he wanted to introduce
concerning discriminatory acts that Asarco took against him.  
I attempted to explain to Mr. Morales that a Commission
administrative law judge is not a court of general jurisdiction.
Many times during the hearing, Mr. Morales sought to introduce
evidence supporting his claim that he was discriminated against
because he is Mexican.  I explained to him that I could not rule
on those issues and I limited the amount of evidence he could
introduce on such issues.  I note that in the discrimination
complaint he filed with MSHA in the case, he alleges that his
rights were violated under the Civil Rights Act of 1964, that he
was treated differently because he was Mexican, and that he was
fired for filing complaints under Title VII of that Act.  (Ex. 
R-25).  Mr. Morales attempted to fold those issues into this
proceeding, but I advised him that I was without jurisdiction to
consider civil rights issues.  It appears that he is still
confused about this distinction.  Most of the issues he raised 
in his reply on remand relate to his misunderstandings about 
the scope of Commission proceedings.

     I tried to help Mr. Morales understand what this proceeding
was about and how to best present his case.  Mr. Morales
continues to believe that I thwarted his efforts.  For example,
he states that I changed the translator that was to be used at
the hearing on the day of the trial.  He apparently expected me
to use the same translator used by Mr. Farber at his deposition.
I engaged a competent, independent translator for the hearing who
did an excellent job.  He also alleges that I did not give him
sufficient time for rebuttal.  Although I excluded some of the
evidence that he sought to introduce on rebuttal because it was
repetitive or irrelevant to the issues in the case, I gave him
all of the time he needed to establish his case in chief and to
rebut the evidence presented by Asarco.  As the administrative
law judge in this case, I could not represent him at the hearing,
but I tried to provide a fair and impartial forum in which he
could present his evidence.

     I conclude that Mr. Coxon of Asarco did not deliberately
attempt to influence the testimony of Mr. Rivera.  I also find,
however, that Mr. Rivera may have misinterpreted his conversation
with Mr. Coxon as an instruction not to openly discuss safety and
health issues at the hearing or to otherwise testify in a manner
that would compromise Asarco's position in the case.
Nevertheless, I find that this possible misunderstanding did not
affect the outcome of this proceeding.  Mr. Morales limited Mr.
Rivera's testimony to the events that occurred on Interstate 19.
As I held in my decision on the merits, there was no showing that
Mr. Morales's discipline following this incident was different
from the discipline given Mr. Dickey.  22 FMSHRC 668.  Mr.
Rivera's testimony did not touch upon the fundamental issues in
the case or materially affect its outcome.

                           III.  ORDER

     For the reasons set forth above, I find that Asarco did not
purposefully attempt to influence the testimony of Tony Rivera
and, to the extent that his testimony was influenced, such
influence did not have any material effect on the outcome of this
proceeding.  Accordingly, for the reasons set forth in my
decision of May 8, 2000, the complaint of discrimination filed by
David Morales against Asarco, Inc., under section 105(c) of the
Mine Act is DISMISSED.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Mr. David Morales, P.O. Box 1115, Frisco, CO 80443  (Certified
Mail)

David Farber, Esq., Patton Boggs, 2550 M Street, NW, Washington,
DC 20037-1350  (Certified Mail)

Mr. Manny A. Rojas, Jr., 4750 South Campbell #710, Tucson, AZ
85714  (Certified Mail)

RWM