<DOC>
[DOCID: f:wst99188cd.wais]

 
August 30, 2000
ASARCO, INC.
WEST 99-188-DM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                    WASHINGTON,  D.C.  20006

                         August 30, 2000

DAVID MORALES                    :
                                 :
                v.               : Docket No. WEST 99-188-DM
                                 :
ASARCO, INC.                     :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioner

                            DECISION

BY THE COMMISSION:

     This discrimination proceeding arises under section
105(c)(3) of the Federal Mine Safety and Health Act of
1977 ("Mine Act" or "Act"), 30 U.S.C.  815(c)(3) (1994).
At issue is Commission Administrative Law Judge Richard
Manning's decision dismissing the complaint of
discrimination filed by David Morales against Asarco,
Inc. ("Asarco").  22 FMSHRC 659, 671 (May 2000) (ALJ).
The Commission granted Morales' petition for
discretionary review challenging the judge's decision.
For the reasons set forth below, we vacate the judge's
decision and remand this matter to him to conduct further
proceedings consistent with this decision.

     Asarco terminated Morales on August 13, 1998.  Id. at
660.  Morales filed a complaint with the Department of
Labor's Mine Safety and Health Administration ("MSHA")
alleging that Asarco fired him because on April 7, 1997,
he complained to MSHA that fumes in the cab of a truck he
was operating were making him sick.  Id.  Morales'
complaint was tried before Judge Manning under section
105(c)(3) of the Act.  Although the judge found that
Morales had engaged in protected activity (22 FMSHRC at
665), he dismissed the discrimination complaint on the
grounds that "there is nothing [in the record] to suggest
that Mr. Morales was targeted for discharge, that he was
being closely watched because of his MSHA complaint, or
that his discipline was unusually harsh."  Id. at 666.
The judge concluded:  "If I review the evidence presented
in this case against the indicia of discriminatory intent
frequently relied upon by the Commission, I find that Mr.
Morales did not establish that his discharge was
motivated in any part by his protected activity."  Id. at
670.

     In his petition for discretionary review, however,
Morales alleged that an attempt was made by an Asarco
employee to interfere with the testimony of a witness he
called, Tony Rivera.  This allegation was supported by
notarized statements from Rivera and Rito Orrantia,
another witness Morales called.  In a Supplemental
Memorandum in Opposition to Complainant's Petition for
Discretionary Review and Motion for Reconsideration of
the Commission's Grant of Review,[1] Asarco
"categorically denies" Morales' allegation of witness
interference, and avers that the allegation was "raised
at trial and rejected based on the evidence."  Supp. Opp.
at 1-2.

     We find that the record does not support Asarco's
assertion that the judge addressed Morales' allegation of
witness interference.  To the contrary, the specific
allegation made in the PDR was not brought up before the
judge, whose decision is dated May 8, 2000, whereas the
Rivera and Orrantia statements are dated May 18, 2000.
The allegation is of a serious enough nature, however,
that we find good cause exists to consider it on review.
See 30 U.S.C.  823(d)(2)(A)(iii) ("Except for good cause
shown, no assignment of error by any party shall rely on
any question of fact or law upon which the administrative
law judge had not been afforded the opportunity to
pass.").

     We are unable, however, to evaluate Morales' allegation.
This must be done by the finder of fact in the first
instance.  We thus remand this case to the judge to
determine whether any attempt was made to influence
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.  In
considering these questions, the judge may, in his
discretion, order further proceedings as appropriate.[2]

     Accordingly, we vacate the judge's decision and remand
this matter to him to conduct further proceedings
consistent with this decision.[3]

                             Mary Lu Jordan, Chairman

                             Marc Lincoln Marks, Commissioner

                             James C. Riley, Commissioner

                             Theodore F. Verheggen, Commissioner

                             Robert H. Beatty, Jr., Commissioner

Distribution

David Morales
P.O. Box 1115
Frisco, CO 80443

Henry Chajet, Esq.
David J. Farber, Esq.
J. Alexander Hershey, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C.  20037

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

**FOOTNOTES**

     [1] We hereby deny Asarco's motion for reconsideration.

     [2] On August 18, 2000, the Commission received an
additional document from Morales containing additional
allegations regarding his employment history and termination, and
witness intimidation.  We have not considered this additional
information in reaching our decision.  The judge may consider
this information on remand, if appropriate.

     [3] Morales raises many other issues in his petition for
discretionary review that we do not reach at this time.  He may,
of course, raise these issues again, as appropriate, in a
petition for review of the judge's decision on remand, including
any parts of the decision we vacate today that the judge
reinstates in his remand decision, or that are necessary
predicates to the remand decision.