Asarco, Inc.

Plain-English summary

The parties asked the Commission to approve a settlement resolving Asarco's contest and discrimination proceedings, including a discrimination claim by David Hopkins. The proposed settlement would have paid Hopkins $15,000 and reduced an $800 civil penalty to $500. The Commission denied the motion without prejudice because the parties had not clearly stated whether the $15,000 payment was net of deductions and had not supplied facts supporting the reduced penalty as required by Commission Rule 31(b)(3). The parties were invited to file a revised motion with the missing information.

Decision snapshot

• Cited provisions: 30 U.S.C. § 801; 30 U.S.C. § 815(c); 30 U.S.C. § 823(c); 29 C.F.R. § 2700.31(b)(3); 30 C.F.R. § 57.14100(b)
• Outcome: The joint motion to approve settlement was denied without prejudice, with leave to file a revised motion.
• Key point: A settlement motion must clearly state payment terms and provide facts supporting any agreed reduction in penalty.

Full text (FMSHRC public release)

[DOCID: f:asarco96.wais]

ASARCO, INC.
December 2, 1996
CENT 95-8-RM

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON, D.C. 20006


                       December 2, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket Nos. CENT 95-8-RM
v. : 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 Commissioners[1]

                            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 Agreement on October 23, 1966
("Joint Motion"). For the reasons set forth below, we deny the
Joint Motion without prejudice.

 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 Manning
awarded Hopkins reinstatement[2] 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. On August 23, 1996, the Commission
granted ASARCO's petition for discretionary review challenging
the judge's conclusion.[3]

 ASARCO subsequently filed with the Commission two motions

requesting extensions of the briefing schedule, indicating that
the parties were either engaged in settlement discussions or in
the process of executing a settlement agreement. The Commission
granted both motions and directed ASARCO to file its brief by
November 6, 1996. The parties filed their Joint Motion before
ASARCO's brief was due. The motion requests, inter alia, that
the Commission approve the settlement agreement set out in seven
numbered paragraphs within the motion. Joint Motion at 3-4.

 Under the terms of the settlement agreement, ASARCO agrees

to pay Hopkins $15,000 "in settlement of any and all of Mr.
Hopkins' claims against [the company]," and to pay $500 in
settlement of the $800 fine assessed by the judge. Id. at 3.
Without further elaboration, the parties state that their
proposed penalty "is consistent with the statutory criteria for
penalties under the Mine Act." Id. Hopkins waives any rights to
be reinstated or to seek employment at any facility owned by
ASARCO or its subsidiaries, successors, or assigns, and he
releases ASARCO from further liability. Id. The parties agree
to bear their own costs in connection with the proceeding, and
represent that the settlement "is in the public interest and will
further the intent and purpose of the Mine Act." Id. at 3-4.
The motion is signed by counsel for ASARCO and the Secretary, and
by Hopkins. Included in the motion is a "Confidentiality
Agreement" paginated as part of the overall submission and signed
by ASARCO's counsel and Hopkins, but not by the Secretary's
counsel. Id. at 5.

 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 (February
1989).

 On its face, the instant settlement agreement fails to

adequately set forth the intent of the parties regarding the
nature of ASARCO's $15,000 payment to Hopkins and whether that
amount represents a net amount to be paid to Hopkins or whether
deductions are to be taken out of that amount. We conclude that
the parties must more clearly express their intentions regarding
the payment to Hopkins to avoid the possibility of future
litigation over the terms of the payment.[4]

 In addition, the parties have failed to meet the

requirements of Commission Procedural Rule 31(b)(3). In keeping
with Congress' intention that the Commission "assure that the
public interest is adequately protected before approval of any
reduction in penalties," S. Rep. No. 181, 95th Cong., 1st Sess.
45 (1977), reprinted in Legislative History of the Federal Mine
Safety and Health Act of 1977, at 663 (1978), Rule 31(b)(3)
requires that a motion to approve settlement include "[f]acts in
support of the penalty agreed to by the parties" (29 C.F.R. §
2700.31(b)(3)), so that the Commission can verify that the
reduced penalty is appropriate. Here, no such facts were
provided by the parties in support of their proposal to reduce
the $800 fine assessed by the judge to $500. ASARCO and the
Secretary state that their proposed penalty "is consistent with
the statutory criteria," but fail to provide any further
justification for reducing the penalty. Joint Motion at 3.

                               Mary Lu Jordan, Chairman

                               Marc Lincoln Marks,
                               Commissioner

                               James C. Riley, Commissioner

FOOTNOTES

[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.

[2]: Hopkins declined the offer of reinstatement.

[3]: In its PDR, 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 of approval of ASARCO withdrawing its
PDR, this issue is moot.

[4]: This result is in keeping with our recent ruling in
Secretary of Labor on behalf of Kaczmarczyk v. Reading
Anthracite Co., 18 FMSHRC 299 (March 1996). In Kaczmarczyk,
we were presented with a dispute regarding whether
deductions should have been taken from an award of monetary
damages paid in compensation for unlawful discrimination
under section 105(c) of the Mine Act. Id. at 300. Noting
that the "issue [was] governed by the terms of the Internal
Revenue Code, not the Mine Act," we held that "[i]n order
for both Reading and Kaczmarczyk to treat that damage award
properly for income tax purposes, the basis for the
stipulated damages must be categorized in appropriate
detail." Id.

Accordingly, the parties' joint motion is denied without
prejudice. The parties are invited to file a revised joint
motion clarifying their intent as to the nature of ASARCO's
payment to Hopkins and fulfilling the requirements of Commission
Procedural Rule 31(b)(3). Any revised motion to approve
settlement shall be filed with the Commission by December 17,
1996. If such a motion is not filed, ASARCO's brief shall be
filed with the Commission by December 31, 1996. The Secretary's
response brief will be due thirty days thereafter.