ASARCO, Inc.

Plain-English summary

ASARCO agreed to pay miner David G. Hopkins $15,000, subject to applicable payroll deductions, to settle his claims after an ALJ found that the company violated the Mine Act by discharging him. The settlement also reduced the civil penalty for that violation from $800 to $500. The Commission approved the settlement, vacated its direction for review, and dismissed the proceeding. The Commission noted that the related question about a 30 C.F.R. § 57.14100(b) violation became moot when ASARCO withdrew its petition.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 30 C.F.R. § 57.14100(b); 29 C.F.R. § 2700.31(b)(3)
• Outcome: The settlement was approved, the penalty was reduced from $800 to $500, and the Commission's direction for review was vacated.
• Key point: The Commission approved a revised settlement after requiring clarification of payroll deductions and support for the proposed penalty reduction.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    January 24, 1997

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. CENT 95-8-RM
: CENT 95-9-RM
ASARCO, INC. :
:
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of DAVID HOPKINS :
:
v. : Docket No. CENT 95-122-DM
:
ASARCO, INC. :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1

                                         ORDER

BY THE COMMISSION:

     In these consolidated contest and discrimination proceedings arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act”), the parties
filed a Joint Motion To Approve Settlement on December 20, 1996 (“Joint Motion”). For the
reasons set forth below, we grant the Joint Motion.

    On March 4, 1996, Administrative Law Judge Richard W. Manning issued a decision

finding that ASARCO, Inc. (“ASARCO”) violated section 105(c) of the Mine Act, 30 U.S.C.
§ 815(c), when it discharged David G. Hopkins, the complainant. 18 FMSHRC 317, 335 (March
1996) (ALJ). In a Supplemental Decision and Final Order issued on July 16, 1996, Judge

   1
     Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

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Page 2

Manning awarded Hopkins reinstatement2 and $12,752 in back pay (minus payroll deductions),
interest, and expenses. 18 FMSHRC 1160, 1163-65 (July 1996) (ALJ). Judge Manning also
ordered ASARCO to expunge from Hopkins’personnel records any mention of his discharge, and
to pay a civil penalty of $800 for its violation of section 105(c). Id. at 1165. On August 23,
1996, the Commission granted ASARCO’s petition for discretionary review challenging the
judge’s conclusions.3

    On October 23, 1996, the parties filed a Joint Motion To Approve Settlement Agreement

which proposed that ASARCO pay Hopkins $15,000 in settlement of Hopkins’claims against the
company and in consideration of his foregoing any rights to be reinstated or to seek employment
at any facility owned by ASARCO, releasing ASARCO from further liability. The motion also
proposed that ASARCO pay $500 in settlement of the $800 fine assessed by the judge. In an
order dated December 2, 1996, we denied this motion without prejudice. We concluded that, to
avoid the possibility of future litigation, the parties were required to indicate whether ASARCO’s
payment to Hopkins represented a net amount to be paid to Hopkins or whether deductions were
to be taken out of the payment. We also concluded that the parties failed to adequately support
their proposed settlement of the penalty assessed by the judge, as they were required to do under
Commission Procedural Rule 31(b)(3), 29 C.F.R. § 2700.31(b)(3). We invited the parties to file a
revised joint motion addressing these two problems.

    On December 20, 1996, the parties filed the Joint Motion. In the Joint Motion, the parties

state that ASARCO’s $15,000 payment to Hopkins is subject to all applicable payroll deductions
withholding, and they have complied with Commission Procedural Rule 31(b)(3) by reciting facts
in support of their proposal to reduce the penalty assessed by the judge from $800 to $500.

    Oversight of proposed settlements is committed to the Commission’s sound discretion.

Pontiki Coal Corp., 8 FMSHRC 668, 674-75 (May 1986). The Commission has exercised this
discretion in the past in both section 105(c)(2) and section 105(c)(3) discrimination cases. See,
e.g., Reid v. Kiah Creek Mining Co., 15 FMSHRC 390 (March 1993); Secretary of Labor on
behalf of Gabossi v. Western Fuels–Utah, Inc., 11 FMSHRC 134, 135 (February 1989); and
Secretary of Labor on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 197, 198 (February
1987). We have reviewed the Joint Motion and the record and, upon full consideration, we grant
the motion and approve the settlement.

   Accordingly, the Commission’s direction for review is vacated and this proceeding is

dismissed.

   2
       Hopkins declined the offer of reinstatement.
   3
     In its petition, ASARCO also raises the question of whether the judge properly

concluded that ASARCO violated 30 C.F.R. § 57.14100(b) in connection with its discharge of
Hopkins. See 18 FMSHRC at 331-34, 336. Since the Joint Motion requests Commission
approval of ASARCO’s withdrawal of its petition, this issue is moot.

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Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

3