.
ASARCO INCORPORATED
May 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


                           May 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

Appearances:  David Morales and Manny A. Rojas, Jr., Legal
              Researcher, Tucson, Arizona for Complainant;
              David Farber, Esq., Patton Boggs, Washington, DC,
              for Respondent.

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, and Asarco filed a post-hearing brief.  Although
Mr. Morales speaks English, a Spanish-English translator was
provided by the Commission at the hearing.[1]  For the reasons
set forth below, I find that Mr. Morales did not establish that
he was discriminated against under the Mine Act and I dismiss his
complaint of discrimination.

                      I.  FINDINGS OF FACT

     Asarco operates the Mission Mine Complex in Pima County,
Arizona, south of Tucson.  Mr. Morales began working at the mill
in April 1995.  In August 1996, he transferred to the surface
mine as a haul truck driver.  Mr. Morales received training on
the safe operation of the haul trucks mostly in English but he
also received some training in Spanish.  He may not have
understood everything that he was told in English.  The haul
trucks are large 240 ton off-road vehicles.
     On April 7, 1997, Mr. Morales filed a complaint with the
Department of Labor's Mine Safety and Health Administration
("MSHA") alleging that fumes in the cab of his haul truck were
making him sick.  MSHA investigated the complaint but did not
issue any citations as a result of Mr. Morales's complaint.
(Exs. R-8, R-9).  Mr. Morales told a number of people at the mine
that he had called MSHA about the fumes.  Prior to filing the
complaint with MSHA, Morales told his supervisors that exhaust
from a haul truck entered the cab making it hard for him to
breath and giving him headaches.  Mr. Morales was examined by the
mine's EMT and was taken to a local hospital for examination.  He
was released to return to work on the same day.  Asarco's truck
shop could not find any problems with the haul truck and it was
returned to service.  Mr. Morales filed the complaint with MSHA
because he did not believe that Asarco fixed the problem.

     Mr. Morales alleges that from April 7, 1997 until he was
terminated on August 13, 1998, he was harassed by Asarco
management.  He contends that the events that are described below
all relate back to this health complaint that he filed with MSHA.
Mr. Morales alleges disparate treatment because he believes that
the disciplinary actions taken against him by Asarco were more
severe than discipline given to other similarly situated
employees.  He believes that because Asarco knew that it could
not immediately fire him for the health complaint, mine
management carefully monitored his work and charged him with
infractions of the company's work rules in situations where other
employees were not charged.  He alleges that he was under
constant pressure to comply with every work rule or face
termination.  Mr. Morales testified that once Asarco accumulated
a sufficient number of infractions against him, it terminated him
and used these infractions to hide the fact that he was really
terminated for complaining to MSHA.

     Mr. Morales relies on a number of factors to establish his
case.  He testified that Todd Parks, who was the General Mine
Supervisor in April 1997, called him into his office after the
MSHA inspector left the mine.  Morales testified that Parks asked
him why he called MSHA.  Morales testified that after a short
discussion, Parks told him that he was going to be fired for
making the health complaint.  (Tr. 42).  Morales complained to
the union but was later told that the company could do what ever
it wanted.  Id.  It is Morales's understanding that, although a
citation was not issued, Asarco was required to fix the haul
truck that was leaking fumes into the cab.  Asarco denies this
statement.  The MSHA report indicates that it tested the cab for
carbon monoxide, carbon dioxide, and nitrogen dioxide and
determined that the air in the cab did not violate MSHA's health
standards.  (Ex. R-9).

     Morales also testified that other employees at the mine told
him that he was being watched very closely by mine supervisors so
that he had better be careful.  Mr. Morales testified that
supervisors were very disrespectful towards him, they cussed at
him, and they called him a "wetback."  He also stated that when
he was involved in any sort of "incident," he was not given a
full opportunity to tell his side of the story.  The incidents
that Morales is referring to are the incidents that Asarco set
forth as justification for his termination.  Finally, Mr. Morales
contends that Asarco unjustly considered the fact that he was
frequently absent from work when it terminated him.  He states
that he was absent from work because of injuries that occurred on
and off the job and because his wife was recovering from surgery.
(Tr. 44).

     I discuss each of these incidents in chronological order.
In July 1995, before he made his health complaint with MSHA, Mr.
Morales was working in the mill at the Mission Complex.  Mr.
Morales was disciplined when he broke a fitting on a piece of
machinery because he drove the machinery away from a ball mill
that he had charged without disconnecting a hose.  (Tr. 217-18;
Ex R-10).  Because Mr. Morales had received earlier verbal
counseling, he was given a written warning for this event.  Mr.
Morales does not dispute that this accident occurred, but
contends that he was new at the job and was trying to work a
little too fast.  He does not believe that he should have been
disciplined because he was new at the job.

     In June 1996, after Mr. Morales had become a haul truck
driver, he backed his truck into the truck shop without having a
spotter present.  Asarco's safety rules provide that when backing
large trucks in congested areas, a second person must be on the
ground to make sure the area is clear.  (Ex. R-5 at 13).  Mr.
Morales received a disciplinary write-up for this event.  The
write-up stated that disciplinary action, including termination,
could result from further safety infractions.  Mr. Morales
testified that he only backed up about 20 meters and he did not
know that a spotter was required.  (Tr. 343-44).  This incident
also occurred before he made his health complaint.

     On April 5, 1997, Mr. Morales parked his haul truck in the
"ready line" in a tight space between two other haul trucks.
When he was asked why he parked in such a tight area, he replied
that he was in a hurry.  (Ex. R-14).  When Mr. Morales pulled the
truck out of this tight space, his truck struck the adjacent
truck's mirror breaking the brace for the mirror.  Mr. Morales
was given counseling and a disciplinary write-up for this event.
(Ex. R-14).  Mr. Morales testified that parking close to other
haul trucks was a common practice at the mine.  He took a
photograph in November 1999 of parked haul trucks that shows two
trucks parked close together.  (Ex. C-4).  He also testified that
when other truck drivers were in minor accidents that caused only
slight damage to company property, they were not disciplined.
This accident occurred before he called MSHA with his health
complaint.

     On August 8, 1997, Mr. Morales parked his haul truck near a
dumping point for lunch.  He had not placed chock blocks
("chocks") behind the tires of his truck.[2]  Asarco's safety
rules provide that anytime a haul truck driver parks his truck
and leaves his vehicle, the wheels of the truck must be chocked.
Several years earlier, two miners were killed at the Mission Mine
when a  parked truck that was not chocked rolled forward while
they were working on the truck.  Morales was written-up for this
event.  (Ex. R-15).  Mr. Morales testified that he was still in
the cab of the truck when Harlan Young, a pit supervisor,
observed the truck without chocks.   (Tr. 354-55, 529).  Morales
believes that he was not required to chock the truck.   Morales
stated that he did not really understand the company's rule on
chocks at the time of this incident so he simply put chocks under
the wheels as Mr. Young requested.

     On December 13, 1997, Morales parked his haul truck without
putting chocks under the wheels and then proceeded to wash out
the cab of his truck with water.  Because the truck is equipped
with rather complex electrical equipment in the cab, including a
computer, miners are not permitted to wash out the cab with
water.  Mr. Morales then attempted to remove the cap on the
radiator without turning off the "master switch" as he had been
instructed.  He could have been severely burned as a result.
Indeed, he had been burned by radiator fluid on a previous
occasion.  Mr. Morales received a disciplinary write-up for these
events.  (Ex R-16).  Morales states that Raymond Bell, another
front line supervisor, was very disrespectful to him when Bell
saw what he was doing and that Bell used vulgar language with
him.  (Tr. 357, 530-31).  This disrespectful attitude upset Mr.
Morales and he discussed it with the general mine operations
supervisor, Mark Kalmi.  Morales believes that the company "used
the thing with the chocks as an excuse to use it against me now."
(Tr. 531).  He believes that Asarco did not require trucks to be
chocked until after this incident.

     On January 26, 1998, Mr. Morales's truck was observed zig-
zagging from side-to-side down a ramp at the pit.  (Tr. 454-56;
Ex. R-26).  Asarco management did not believe that he was
maintaining proper control of his truck in violation of company
safety rules.  Most of the witnesses at the hearing testified
that Mr. Morales had a reputation as a rather fast and careless
driver, both at the mine and in his own vehicle.  Mr. Morales
testified that the truck that he was driving was old and was not
in good shape.

     On February 13, 1998, two Asarco supervisors observed Mr.
Morales without his safety glasses while standing on the deck of
his truck.  Asarco safety rules provide that safety glasses must
be worn at all times.  He was written-up for this event. (Ex. R-
18).  Mr. Morales contends that he took off his glasses to look
at something and talk to supervisors and that he generally wears
them.  (Tr. 363).

     On February 28, 1998, Mr. Morales was assigned a haul truck
that used compressed air to start the engine.  A mechanic
attached a compressed airline to his haul truck at the ready
line.  Mr. Morales failed to disconnect this airline before he
drove away from the ready line.  When he drove away, part of the
air hose was ripped from the air compression system.  When his
truck was inspected later that shift, it was discovered that only
one of six tail lights was working.  From these two events, the
company concluded that Mr. Morales did not do a pre-shift
examination of his truck before he drove away from the ready
line.  Mr. Morales was given a one-day disciplinary layoff for
failure to do a proper pre-operational check of the truck and
leaving the ready line with the airline attached.  (Ex. 19).
Mr. Morales believes that the mechanic should have removed the
airline.  He also states that he did a pre-operational check but
that he could not check the lights without assistance from
someone else.  (Tr. 364-70, 532-33).  Morales states that Asarco
management abused him after this event by interrogating him about
it for over an hour looking for an excuse to blame him.  (Tr.
366-67).

     On March 20, 1998, Mr. Morales was driving to work on
Interstate 19.  Morales testified that there was a pickup truck
in the left lane driving slowly and a larger truck in the right
lane.  When Morales attempted to pass the trucks, the driver of
the pickup accelerated but he was able to pass between the two
trucks.  (Tr. 63).  The man driving the pickup was Ken Dickey, a
fellow miner at the Mission Mine.  Apparently, Mr. Dickey thought
that Morales cut him off and he picked up a handgun that he had
in his truck and held it up to show Mr. Morales through the truck
window.  When Mr. Morales arrived at the mine he waited for Mr.
Dickey in the parking lot and confronted him about the incident.
Dickey and Morales started verbally fighting about the incident
as they entered the mine and walked to the change room.  At one
point Mr. Dickey said something like "this is the West and I can
shoot anybody I want."  This angered Morales who told Dickey that
he was a good boxer.  An altercation ensued and Asarco
supervisors had to separate the two men.  Morales called the
police.  Both employees were issued disciplinary letters and were
suspended for the remainder of the day with pay.

     On March 30, 1998, Mr. Morales drove his haul truck into a
berm while turning around and damaged the automatic fire
suppression system on the truck.  The damage was not significant
but it set off the extinguishers.  He drove away from the site of
the accident but later reported to dispatch that the fire
extinguishers had gone off and he felt dizzy.  Asarco charged him
with a violation of the company's safety rules by recklessly
operating his haul truck and leaving the scene of an accident.
(Ex. R-21).  Mr. Morales received a two-day disciplinary layoff.
Mr. Morales does not believe that he is responsible for the
accident.  He testified that he left the area to get out of the
travelway and that because the truck was old it had
malfunctioned.  (Tr. 534-37).

     On May 11, 1998, Mr. Morales was driving along a two-lane
county road on the way to work when he passed Nancy Baca, who
also drove trucks in the pit.  He was driving very fast, up to 70
mph as he passed her.  She apparently made an obscene gesture at
him with her hand.  She arrived at the mine's parking lot shortly
after he did.  When Ms. Baca arrived, he confronted her and, in
Spanish, cussed at her and called her obscene names.  Later, Mr.
Morales apologized to Ms. Baca, but she would not accept his
apology and reported the incident to management.  Morales
received a two-day disciplinary layoff for exhibiting
confrontational and threatening behavior to another employee.
(Ex. R-22).   This discipline was the last step before
termination under Asarco's progressive disciplinary system.  Mr.
Kalmi was especially concerned because this incident occurred
less than two months after the Dickey incident.  Mr. Morales
testified that Ms Baca did not like him and that she took
advantage of this situation to get him into trouble with
management.  (Tr. 371-76, 538-39).  He believes that Ms. Baca
should have been disciplined too.  In addition, he points out
that his supervisors have cussed at him and have called him
names.

     On August 8, 1998, Mr. Morales drove his haul truck around
the blind side of another haul truck and pulled up close to the
front of this other truck, nose-to-nose.  He apparently pulled up
in this manner because he wanted to discuss the possibility of
car pooling with the driver of the other haul truck, Gilbert
Sanchez.  When Mr. Morales backed away, the trucks became
entangled causing damage to the other truck.  Asarco contends
that Morales violated a company safety rule which provides,
"[h]aul trucks should not be parked front-end to front-end,
parallel, or cab to cab for purposes of conversation."  (Ex. R-5
at 34). Morales testified that as he approached the other truck,
Mr. Sanchez assisted him through the use of hand signals.
Consequently, Mr. Morales believes that Mr. Sanchez was partly to
blame for the damage to the truck.  Mr. Sanchez did not testify
at the hearing, but according to the testimony of mine manager
Sylvester Lakowski and Messrs. Kalmi and Young, Sanchez was
signaling Morales to stay away from his truck.[3]

     Asarco conducted an investigation of this accident.  In his
summary of this investigation, Mr. Young wrote:

               During the meeting [about the accident],
          Gilbert [Sanchez] said he tried to waive
          David [Morales] from approaching when he
          quite unexpectedly saw him pull up to his
          truck.  He further said that David was
          driving stupidly for most of the night, and
          driving fast.

(Ex. R-23).  Sally Koos was operating the shovel in the pit at
the time.  She did not see the trucks make contact.  According to
Young's report she related the following:

     [S]he noticed that 359 [Sanchez's truck] was waiting at the
     crossover mat while she cleaned up in front of the shovel,
     and then saw 357 [Morales's truck] backing up around
     the side of 359 and to the back of it and then leave the
     shovel area without loading.  She also made mention that 357
     had been  driving wildly during the night and backing
     up to the shovel too fast and crooked.  One other unsafe action
     she witnessed was when 357 would pull in at the right hand
     side of the shovel, he would come in fast, make the turn hard,
     slamming on the brake and slid quite a few feet in the mud
     toward the pit edge berm before backing in.

Id.

     During the investigation, Mr. Sanchez drew a map showing the
position of the trucks. (Ex. R-24).  Mr. Morales did not dispute
the drawing.   Mr. Morales believes that Sanchez was equally
responsible for this accident and that Asarco blamed Morales
because they wanted to fire him for complaining to MSHA about
fumes in his truck cab.  He stated that other employees park
their trucks front-end to front-end without receiving any
discipline.

     At the conclusion of its investigation, Asarco terminated
Mr. Morales from his employment.  It based the termination on the
infractions described above and his excessive absenteeism.  (Ex.
R-23).  As stated above, Mr. Morales believes that all of the
discipline that he received came about as a result of his health
complaint to MSHA.

      II.  DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS

     Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine
Act.  The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act"
recognizing that, "if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of
their participation."  S. Rep. No. 181, 95th Cong., 1st Sess. 35
(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 623 (1978).

     A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity.  Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980),
rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary
of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981).  The mine 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
mine operator cannot rebut the prima facie case in this manner,
it nevertheless may defend 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.;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

       A.  Did David Morales Engage in Protected Activity?

     Mr. Morales engaged in protected activity when he complained
to Asarco about fumes in the cab of his haul truck and when he
called MSHA to complain about these fumes.  His complaint to MSHA
was made on April 7, 1997

     B.  Was David Morales's Discharge from Employment Motivated
in any part by his Protected Activity?

     In determining whether a mine operator's adverse action was
motivated by the miner's protected activity, the judge must bear
in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is
indirect."  Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir 1983).  "Intent is subjective and
in many cases the discrimination can be proven only by the use of
circumstantial evidence."  Id. (citation omitted).  Some of the
circumstantial indicia of discriminatory intent include (1)
knowledge of the protected activity; (2) hostility or animus
towards the protected activity; and (3) coincidence in time
between the protected activity and the adverse action.

     Mr. Morales is claiming disparate treatment.  He points to
the above events to establish that he was treated more harshly
than other employees.  He believes that he was watched very
closely by management between April 1997 and August 1998 for any
mistakes he made no matter how minor.  He alleges that
supervisors would follow him looking for a chance to discipline
him.  He alleges that on two occasions he was required to take
drug tests in situations where he did not think it was warranted.

     I agree with Mr. Morales that it is quite feasible for a
mine operator to take the approach that he is suggesting.  A
sophisticated operator like Asarco can target a miner for
discharge and closely monitor his conduct over a lengthy period.
It can impose discipline for every violation of company rules in
order to create a record on which to base the termination.  Many
employees could be subject to termination in such a fashion.
Indeed, one miner on layoff status testified that Asarco was
closely watching everyone because it wanted to reduce the
workforce.  (Tr. 152).

     I find, however, that Mr. Morales failed to show that he was
treated differently.  Most of the events discussed above are
serious violations of Asarco's safety or work rules.  Although
there is some evidence that these rules were not consistently
enforced at the mine, there is nothing 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.

     Mr. Morales believes that his discipline and discharge were
unfair.  It is important to understand that I do not have the
authority to determine whether this discipline was fair or
reasonable.  The "Commission does not sit as a super grievance
board to judge the industrial merits, 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 Co., 12 FMSHRC
2535, 2544 (December 1990)(citations omitted).  The issue is
whether the discipline given to Mr. Morales was motivated in any
part by his protected activity.

     The discipline for three of the incidents discussed above
occurred before Mr. Morales engaged in protected activity.  These
incidents are his accident in the ball mill, parking his truck
too close to another truck in the ready line, and backing his
truck into the shop without a spotter.  As a consequence, the
discipline given for these incidents do not support Mr. Morales's
case.

     The first incident after his complaint occurred in August
1997 when Mr. Morales was cited for failing to chock his truck
near the dumping area.  Morales testified that he was sitting in
his truck with the air conditioning on waiting for clearance to
take his lunch break.  Under such a circumstance, it does not
appear that chocks were required unless he left his truck.  Mr.
Young's report states that Morales's truck had stopped for lunch
and the truck was not chocked.  (Ex. R-15).  The report states
that Young stopped to let Morales know that he must always chock
his truck when he is not parked in a designated tie down area.
Id.  Mr. Young testified that he wrote down his reminder to
Morales.  (Tr. 449).  It does not appear that Morales was
seriously disciplined in this instance but he was simply reminded
to use chocks.  Young's action did not constitute harassment of
Morales.  There is no showing that he was singled out for this
type of write-up.  As stated above, two miners were killed in the
early 1990s when they failed to chock a truck they were working
on.  I credit the testimony of Asarco's witnesses that the
company attempted to enforce its safety rules requiring the use
of chocks.  It appears that some supervisors did not consistently
enforce this rule, especially on the graveyard shift, but that
does not establish that Morales was singled out for harsher
discipline under the rule.

     In December 1997, Morales parked his truck, washed the cab
out with water, got out onto the front of the vehicle, and was
attempting to remove the radiator cap so he could add more water.
Messrs. Bell and Young saw him there and investigated.  Mr. Bell
was quite agitated and directed vulgar words and epitaphs at Mr.
Morales.  These Asarco managers were upset that he had not
chocked his truck, that he washed out the cab with water, and
that he was attempting to remove the radiator cap without
releasing the pressure with the master switch.  Morales was at a
water station and chocks were present in the area that he could
have used.
He had been reminded a few months before to use chocks.  In
addition, he had been told to release the pressure in the
radiator before removing the cap.  Indeed, he had been burned
before while removing a radiator cap.  As discussed above,
Morales received a disciplinary write-up for this event.

     Morales was particularly concerned about the disrespectful
tone and vulgar language used by Bell.  The following day there
was a meeting in Kalmi's office about this incident.  A Spanish
speaking union steward was present.  Mr. Bell apologized to Mr.
Morales for his vulgar language.   The reasons for the company's
safety rules were explained to Morales in Spanish.  Mr. Bell was
subsequently disciplined for using vulgar language with Morales.

     This incident does not help establish that Asarco was out to
get Morales for his MSHA complaint.  Morales put himself in
danger by failing to chock the truck and attempting to take the
cap off the hot radiator.  He violated company safety rules.  Mr.
Bell's conduct when he saw what Morales was doing may have been
disrespectful, but there is no indication that he was attempting
to use this incident as an excuse to discipline Morales for his
health complaint.  I find that Bell, Young, and Kalmi were
genuinely concerned about the safety violations that Morales
committed.

     In January 1998, Morales was observed driving down a ramp to
the pit.  It appeared to Young and Bell that he did not have
control of his truck.  When Young questioned Morales about it,
Morales told him that his truck was functioning correctly.  Mr.
Lakowski testified that other truck drivers in the pit told
supervisors that they were concerned about Morales's driving
abilities.  (Tr. 211).  Morales had a reputation for driving too
fast.  I find that this event and the write-up that Morales
received fails to support Morales position that the charges
brought against him were trumped up and that, as a result, he was
treated differently than other employees.

     In February 1998, Morales was written up for failing to wear
his safety glasses.  It appears that he did not understand that
he must wear safety glasses at all times.  This incident was not
a major infraction but Morales was written up for it.  In
isolation, one could argue that this infraction of the company's
safety rules supports Morales's belief that Asarco was closely
watching him to catch him violating company rules.  However, even
if I accept his theory, this event is one of many relied upon by
Asarco that are of a more serious nature.

     In February 1998, Morales drove away from the ready line
without disconnecting a compressed air hose.  The compressed air
hose was damaged as a result.  Supervisor Jim Brown reminded
Morales when he arrived at the ready line that day to remove the
airline before driving away.  (Ex. R-19).   The evidence also
establishes that Morales did not perform a thorough pre-
operational check of his truck.  Morales testified that it was
his belief that the truck should not have been placed on the
ready line if it were not ready to operate.  It appears that he
did not have an appreciation of the requirement that each driver
inspect his own truck for defects that could affect safety.
Morales was given a one-day disciplinary layoff.

     The discipline Morales received for the February 28 incident
does not support his case.  Truck drivers are required to do pre-
operational checks of their equipment and they use another driver
when checking the lights.   If another driver is not available to
help, they call dispatch for assistance.  Although Asarco
questioned Morales about these events, there is no corroborating
evidence that he was abused or interrogated about the incident in
order to blame him for something that he did not do.  The charges
against him were not fabricated.

     The two events involving conflicts with other miners also do
not support Morales.  In each case, these disputes originated off
mine property but continued at the mine.  I find that it was
reasonable for Asarco to discipline Morales for these
confrontations.  There has been no showing of disparate treatment
with respect to these incidents.  Mr. Dickey was also disciplined
for his behavior at the mine.

     With respect to the discharge of the fire suppression system
on his truck, Morales contends that it was never established that
he caused any damage.  He believes that Asarco incorrectly
assumed that system was damaged when he drove up against a berm.
He testified that it is just as likely that the system
malfunctioned.  Even if I assume that Morales's argument is
supported by the evidence, it does not establish that discipline
was an excuse to get back at him for his MSHA complaint.  Morales
received a two-day disciplinary layoff.  There is nothing to
indicate that his discipline was motivated in any way by the MSHA
complaint.  The discipline Morales received was becoming more
severe with each infraction under Asarco's progressive
disciplinary system because of his prior history of violating
company rules.

     The event that ultimately led to his termination was fully
investigated by Asarco.  Morales believes that Mr. Sanchez should
also have been disciplined.  Asarco did not discipline Sanchez
because his truck was stationary and the company credited his
rendition of the events.  Asarco managers believe that Sanchez
did not want Morales to drive up close to his truck and that he
was trying to motion Morales away.  The company also credited the
statements of Sanchez and Ms. Koos that Morales had been driving
too fast and in a reckless manner during the shift.  I find that
the evidence presented at the hearing concerning this accident
does not support a conclusion that Morales's termination from
employment was connected to the complaint he filed with MSHA in
1997.

     Morales also testified that Asarco managers said that he
would be fired for filing the MSHA health complaint.  Morales
relies on statements made by Mr. Parks to support his case.  It
must be noted that Parks no longer worked for Asarco when Morales
was terminated and he was not involved in that decision.  The two
conversations that Morales relies upon occurred at the time MSHA
investigated his health complaint and in March 1998.  Morales
testified that Parks told him that he was going to be fired for
getting MSHA involved in the health complaint.  Mr. Parks, who
now works as a salesman, was not available to testify at the
hearing.  James Coxon, the mine's human resources manager,
testified that he called Parks about his conversations with
Morales.  Coxon testified that Parks told Morales in the first
conversation that he would prefer that Morales come to him rather
than MSHA if he had safety or health concerns.  Parks said that
in the second conversation, in March 1998, Morales mentioned that
he was thinking about getting a job with the railroad.  Parks
told Coxon that in response to this statement he told Morales
that getting another job was a good idea "because if you continue
on with the safety violations you have here, you will be
discharged."  (Tr. 502).  Since Parks did not testify, it is
difficult to judge the credibility of Coxon's testimony in this
regard.  I note, however, that English is not Mr. Morales primary
language and it is possible that he misinterpreted Parks's
statement of March 1998 to mean that he would be discharged for
making safety complaints.

     Morales also believes that he was harassed when Asarco
treated him like a drug addict.  He testified that he never uses
illegal drugs.  Asarco does not allege that Morales uses drugs.
Asarco tested Morales for drugs in accordance with policies
agreed to by the unions at the mine.  He was tested after his
accident on August 8, 1998.  Although I can understand why
Morales might be offended by these tests, the fact that these
tests were taken does not help establish that Asarco was
retaliating against him for making the health complaint to MSHA.
There has been no showing that the drug tests were taken in
contravention of Asarco's standard policies and procedures for
drug testing.

     Morales also generally alleges that he was disciplined more
harshly than others at the mine.  Mr. Coxon testified that many
Asarco employees have been disciplined for infractions similar to
Mr. Morales's.  (Tr. 490-91).  He stated that during the two
years prior to the hearing in this case, Asarco issued about 70
disciplinary letters each year for time off and discharge.

     Morales called a number of witnesses on his behalf, but none
of these witnesses testified that Morales was terminated because
of his health complaint to MSHA.  Ben Barela, an officer with the
Steelworkers Union at the mine, testified.  When he was asked if
he had reason to believe that Morales was terminated for his
health complaint to MSHA, he replied "[n]ot to my knowledge."
(Tr. 123).  Lennis Hunnicutt, chief steward for the Steelworkers,
testified that he is not sure that Morales had a sufficient
understanding of English to safely work at the mine or to
understand Asarco's safety rules.  (Tr.134).  He does not believe
that Morales should have been terminated for driving up to
Sanchez's truck.  (Tr. 136).  Frank Urbano, a truck driver at the
mine who was on layoff status, testified that drivers did not
always chock their trucks and that some drivers have been in
accidents without receiving any discipline.  (Tr 149).  He also
testified that Morales had a reputation in the pit of being an
unsafe driver.  (Tr. 156).  Jerry Pea, who had been a truck
driver in the pit, testified that management kept a close eye on
Morales starting in April 1997, but he did not know if that was
because Morales had called MSHA or because Morales was involved
in a number safety infractions.  (Tr. 162, 177).   He stated that
drivers sometimes do not chock their trucks, especially on the
graveyard shift.  (Tr. 171).  Miguel Moreno, a former truck
driver at the pit, testified that he did not believe that Morales
was treated differently by management than other truck drivers.
(Tr. 192).

     Randall Groce, another truck driver at the pit, testified
that Morales had the reputation of being an aggressive driver.
(Tr. 304).  He stated that some drivers thought Morales was
unsafe and wild when he drove his haul truck.  (Tr. 309).  Allen
Auguello, who also works in the pit, testified that drivers do
not always put chocks under the wheels of haul trucks when they
park them.  (Tr. 315).  He also stated that Morales brought
attention to himself because he was an aggressive driver.  (Tr.
320).  He further stated that front line supervisors are not
always consistent when they discipline employees.  (Tr. 325).

     Although the testimony of Mr. Morales's witnesses generally
supports his position that he was closely watched by supervisors,
it does not establish that he was closely watched because he made
his health complaint to MSHA.  There is insufficient evidence on
which to draw such an inference.  This testimony also establishes
that discipline is not always consistent and that some miners
violate safety rules without being caught.  But this evidence
does not advance Morales's case.  I cannot infer from this
evidence that there was a connection between Morales's MSHA
complaint and the enforcement of safety rules at the mine.

     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.
It is clear that Mr. Parks had knowledge of Mr. Morales's
protected activity.  The mine manager, Mr. Lakowski, testified
that he did not become aware that Morales had called MSHA with a
health complaint until after he was terminated from his
employment at Asarco.  (Tr. 214).  Mr. Kalmi testified that he
did not know about Morales's health complaint to MSHA until the
MSHA investigator arrived at the mine to investigate Morales's
discrimination complaint after he was discharged.  (Tr. 387-88).
I accept their testimony, although I find that it was widely
known among employees in the pit that Mr. Morales called MSHA.
Because Mr. Parks and front line supervisors in the pit had
knowledge of the complaint, I find that Asarco had knowledge of
the protected activity.

     Although Morales testified that Asarco supervisors displayed
strong animosity towards his protected activity, there is little
other evidence to support his claim.  The fact that individual
managers may have been annoyed with Morales is not sufficient to
establish animosity towards the protected activity.  I dare say
that every mine operator is annoyed when MSHA shows up.  I cannot
draw an inference that Asarco went to the lengths described above
to terminate Morales because he made a health complaint to MSHA
especially since MSHA did not issue any citations as a result of
his complaint.  It is important to recognize that Morales had a
lengthy disciplinary record that started well before he made his
complaint to MSHA.

     Finally, there is little coincidence in time between the
protected activity and the adverse action.  As stated above, I
believe that it is possible for a mine operator to bide its time
so it can get rid of a miner who complains about safety or health
conditions without leaving tracks.  In this case, however, there
is insufficient evidence on which to draw such an inference.  The
two events do not appear to be related.  In any event, even if
his health complaint to MSHA played some part in Asarco's
decision to terminate Morales, I find that Asarco established
that it would have terminated Morales for his unprotected
activity alone based on his violations of the company's safety
and work rules, his accidents, and his absenteeism.


                           III.  ORDER

     For the reasons set forth above, the complaint of dis-
crimination 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, 2300 West Ina Road #13101, Tucson, AZ 85741
(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

**FOOTNOTES**

     [1]:  Everything that occurred at the hearing was translated
from  English  into Spanish by the translator.  Mr. Morales spoke
mostly in Spanish, which was translated into English.

     [2]:  The word  "chocks"  was  incorrectly  transcribed  as
"chalks" in the transcript.

     [3]:  I required the parties to exchange witness and exhibit
lists.  Both  parties  complied  with  my order.  Asarco sent its
list  to  Morales via Federal Express.  Several  days  after  the
close of the  hearing, Morales informed my office that he did not
receive Asarco's witness list until after the hearing because the
FedEx driver left  the  package  at  the office for his apartment
complex.  He stated that he assumed that  Asarco  would  call Mr.
Sanchez  as  a  witness.   Mr.  Morales  did not inform me at the
hearing that he had not received Asarco's  witness  list  and  he
could  have  called  Sanchez  as a witness.  Morales subpoenaed a
number of Asarco employees who testified at the hearing.