David Morales v. Asarco, Inc.

Plain-English summary

Asarco discharged David Morales after he complained to MSHA about fumes in a truck cab. An ALJ dismissed his discrimination complaint after finding that Morales engaged in protected activity but did not prove discriminatory motive. On review, Morales presented notarized statements alleging that an Asarco employee tried to interfere with a witness's testimony. The Commission vacated the dismissal and remanded for the judge to determine whether witness interference occurred and whether it materially affected the case.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(3)
• Outcome: The ALJ's dismissal was vacated and the case was remanded for further proceedings.
• Key point: A serious witness-interference allegation raised on review may be considered for good cause and must first be evaluated by the fact finder.

Full text (FMSHRC public release)

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.

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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

   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.

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    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


   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.

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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

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