<DOC>
[DOCID: f:wst96319.wais]

 
ROUND MOUNTAIN GOLD CORP
July 18, 1997
WEST 96-319-DM


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

                            July 18, 1997


TIMOTHY CARPENTER,              : DISCRIMINATION PROCEEDING
               Complainant      :
                                : Docket No. WEST 96-319-DM
             v.                 :
                                : Smoky Valley Common Operation
ROUND MOUNTAIN GOLD CORP.,      :
               Respondent       : Mine ID No. 26-00594


              ORDER GRANTING MOTION FOR SUMMARY DECISION
                          ORDER OF DISMISSAL

     Timothy Carpenter filed a complaint of discrimination
against Round Mountain Gold Corp. ("Round Mountain") under 
section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C.  815(c)(3)("Mine Act").  Mr. Carpenter was
terminated from his employment by Round Mountain following an
accident that occurred on March 8, 1996.  In his discrimination
complaint, Mr. Carpenter alleges that he was denied peer review
of his termination because he called MSHA to discuss the accident.
Round Mountain contends that it terminated Carpenter for just
cause and that it did not know that he had contacted MSHA
until after the decision was made to deny his request for peer
review.

     On June 10, 1997, Round Mountain filed a motion for summary
decision under 29 C.F.R.  2700.67.  Mr. Carpenter did not respond
to the motion.  Summary decision is appropriate "only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) that there
is no genuine issue as to any material fact; and (2) that the moving
party is entitled to summary decision as a matter of law."  Id.
If a party does not respond to a motion for summary decision, 
"summary decision, if appropriate, shall be entered against him." 
29 C.F.R.  2700.67(c).  Based on the record in this case, I find
that summary decision is appropriate and grant Round Mountain's 
motion.

     The accident that preceded Mr. Carpenter's termination
occurred on March 8, 1996.  He was sent home that day and was 
called back to the mine on March 12, 1996.  On that date he was
informed that he was being terminated from his employment. 
Round Mountain's employee handbook contains a peer review policy.
Under that policy, an employee may request that an adverse action
taken against him be submitted to a peer review committee to
determine the propriety of the action. The request for peer review
must be made within three days of the adverse action.  The general
manager of the mine has the authority to deny the request.  The
peer review committee is composed of five hourly employees. 
Mr. Carpenter contends that he called General Manager Steve Mueller
on March 15, 1996, to request peer review.  Round Mountain contends
that he did not request peer review until April 8, 1996.

     On April 8, 1996, Mr. Carpenter called the human resources
department at the mine to check on the status of his request for
peer review.  A human resources employee told Carpenter that she
would check on it, and called him back a few minutes later to
tell him that she would "get one started."  (Carpenter dep. at 105).
After these conversations, Mr. Carpenter called MSHA for the first 
time.  (Carpenter dep. at 39, 105).  An MSHA official told 
Mr. Carpenter that MSHA would investigate the March 8 accident. 
Carpenter called the human resources department again on April 9,
1996, and was told that his request for peer review had been denied.
He did not tell anyone at the mine on April 8 or 9 that he had
contacted MSHA about the March 8 accident. (Carpenter dep. at 111).

     In an affidavit, Mr. Mueller testified that he made the
decision terminate Mr. Carpenter and to deny him peer review. 
His decision to terminate Mr. Carpenter could not have been linked
to Mr. Carpenter's call to MSHA, since the call was made a month
later.  Mr. Mueller testified that his decision to deny 
Mr. Carpenter's request for peer review was not in any way 
influenced or caused by the fact that Mr. Carpenter contacted MSHA.
Indeed, he testified that he had no knowledge at the time he made
that decision that Mr. Carpenter had called MSHA.  He based his 
decision in large part on the fact that he believed that 
Mr. Carpenter had not made a timely request for peer review. The
record does not contain evidence to refute Mr. Mueller's testimony.
Thus, there are no genuine issues of material fact and Round
Mountain is entitled to summary decision as a matter of law.  The
date that Mr. Carpenter first requested peer review is not material
to my determination.

     Many of the allegations set forth in Mr. Carpenter's complaint
of discrimination state that he was treated unfairly by Round Mountain.
I do not have the authority to determine whether Mr. Carpenter's
discharge was fair or reasonable.  The "Commission does not sit as
a super grievance board to judge the industrial fairness, reasonableness,
or wisdom of an operator's employment policies except insofar as those
policies may conflict with rights granted under section 105(c) of the
Mine Act."  Delisio v. Mathies Coal Company, 12 FMSHRC 2535, 2544 
(December 1990)(citations omitted).

     Based on the record in this case, as summarized above, I find that
summary decision is appropriate. Accordingly, Round Mountain's motion
for summary decision is GRANTED and this proceeding is hereby DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Victor M. Perri, Esq., 515 South Third Street, Las Vegas, NV 89101
(Certified Mail)

Steven J. Merker, Esq., MERRICK, CALVIN & MERKER, 600 17th Street,
Suite 950, Denver, CO 80202 (Certified Mail)

RWM

VICTOR M PERRI ESQ
515 SOUTH THIRD STREET
LAS VEGAS NV 89101

STEVEN J MERKER ESQ
MERRICK CALVIN & MERKER
600 17TH STREET #950
DENVER CO 80202