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[DOCID: f:c97103dm.wais]

 
PHELPS DODGE CORPORATION
June 5, 1997
CENT 97-103-DM


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA  22041

                           June 5, 1997


ROLDAN A. AVILUCEA,             :  DISCRIMINATION PROCEEDING
               Complainant      :
          v.                    :  Docket No. CENT 97-103-DM
                                :
PHELPS  DODGE  CORPORATION,     :  SC MD 97-01
               Respondent       :
                                :  Chino Mine

                            DECISION

Before: Judge Fauver

     This is a discrimination action under section  105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  �  801  et
seq.

     Complainant  alleges  acts  of discrimination occurring from
October 28, 1993 through May  5,  1994.   His  complaint to the 
Mine  Safety  and  Health Administration (MSHA),  United  States 
Department  of  Labor, is dated  October  4,  1996. In his letter 
of that date to Special Investigator  David  J.  Haupt  of  MSHA, 
Complainant stated that he had  not filed a complaint with MSHA 
earlier  for  the  following reasons:

          I  have not filed a complaint with the Mine Safety
     and  Health   Administration   because  I  have  become
     increasingly ill with depression  due  to the injustice
     that the Phelps Dodge Corporation meted  out to me.  It
     was just recently that I was able to listen to the tape
     records and, as a result, discover the transaction, the
     bribe, that the Phelps Dodge Corporation made with
     Mr. C. Chester Brisco, the arbitrator.

     Section 105(c)(2) provides that a miner "who  believes  that
he  has  been discharged . . . or otherwise discriminated against
by any person in violation of this subsection may, within 60 days
after such  violation occurs, file a complaint with the Secretary
alleging such  discrimination."

     The latest  act  of  discrimination  in  the complaint is an
allegation that Respondent bribed an arbitrator  on  May 5, 1994,
based upon statements tape-recorded when Complainant accidentally
left  his  tape  recorder  on  during  a recess in an arbitration
hearing concerning his discharge by Respondent.

     On April 29, 1997, a Show Cause Order  was entered requiring
Complainant to show cause why this action should not be dismissed
for  failure  to  file  a complaint with MSHA within  the  60-day
limitation provided in section 105(c)(2) of the Act.

     On  May 5,  1997, Respondent  filed  a  motion  for  summary
decision under the  Commission's  Rules of Procedure, 29 C.F.R. �
2700.67, on the ground that the complaint is untimely.

     On May 19, 1997, Complainant filed  a  response  to the Show
Cause Order. Complainant states that when he was notified  by the
Company,  on  November  3, 1993, that he was terminated effective
that   date,  he  was  "emotionally   devastated"   and   "became
depressed."  His response states
further in part:

          At  that  time  I  was the sole breadwinner for my
     family.  As soon as I found  buyers  for  my  tools and
     other  possessions that had taken me and my wife  years
     to acquire,  I  would  sell them.  The Christmas Season
     was upon us, and, at that  time,  my  oldest son was 14
     years old, my next oldest son was 12 years  old, and my
     youngest  one  was 9 years old.  I had no other  choice
     but to sell what  I  could.  While I was selling what I
     could, I was also trying  to  find  employment, but, at
     that time, no one was hiring.

          *** The only option that was left  for  me  was to
     continue  to  sell all that was left and move somewhere
     else.  This realization  further  added  to  my already
     growing depression.

          On February 3, 1994, I went to see Dr. Fed M. Fox,
     M.D.,  at the La Cienega Family Practice to see  if  he
     could help  me with my depression  and headaches that I
     had started to  have  since  the  shoving  incident  of
     October 28,  1993  ....  Dr.  Fox  recommended  that  I
     continue seeing him but due to my financial situation I
     could not afford to.

          I can't recall the exact date, but sometime in May
     of 1996, I began to listen to the tape recording that I
     had  made  of  the  Arbitration Hearing of May 5, 1994.
     While  doing  so I discovered  the  portion  where  Mr.
     Gurtler,  the Technical  Services  Supervisor  for  the
     Phelps Dodge  Corporation, had offered the bribe to the
     arbitrator, Mr. C. Chester Brisco.

          After  having   made   this  discovery,  I  became
     increasingly ill with depression  and  vomiting spells,
     but somehow I managed to contact Mr. David  Estrada, an
     employee  of  the Mine Safety and Health Administration
     from the Arizona district on June 1, 1996.

          Mr. Estrada gave me the following telephone number
     to call: 1-602-649-5452.   I  called  that  number  and
     spoke  to  Mr.  Cole, also an employee for [MSHA].  Mr.
     Cole then transferred  me  to  Mr.  Fink  and  Mr. Fink
     transferred  me  to  Mr. Haupt  in  Dallas, Texas.  Mr.
     Haupt then assigned my case to Mr. Mesa  and  Mr.  Mesa
     transferred  my  case  to Mr. Dennis Rayn in Arlington,
     VA.  I complained to all  of  the  above  mentioned men
     about the discovery that I had made.  In other words, I
     complained [to] MSHA.

          What  I am saying is that as soon as I  discovered
     the bribe I  reported  it to the Mine Safety and Health
     Administration.

     On  January 10, 1997, MSHA  notified  Complainant  that  its
investigation  revealed no violation of section 105(c).  On March
27, 1997, Complainant filed this action.

            DISCUSSION WITH FINDINGS AND  CONCLUSIONS

     Under section  105(c)(2)  of  the  Act,  if a miner believes
that he has been discharged in violation  of  section  105(c)(1),
and wishes to invoke his remedies under the Act, he must file his
initial  discrimination complaint with MSHA within 60 days  after
the  alleged  violation.   After  investigation of the complaint,
the Secretary is required to file a discrimination complaint with
the Commission on the miner's behalf  if the Secretary determines
that the Act was violated.  If the Secretary  determines that the
Act was not violated, he must inform the miner, and the miner may
then file his own complaint with the Commission.

     The  purpose  of  the  60-day time limit is to  avoid  stale
claims, but a miner's late filing
may  be  excused  on the basis of   "justifiable  circumstances."
Herman  v.  IMCO  Services,   4 FMSHRC 2135   (1982);  Hollis  v.
Consolidation Coal Company, 6 FMSHRC 21 (1984).

     The  legislative history relevant to the 60-day  time  limit
states:

          While  this time-limit is necessary to avoid stale
     claims  being  brought,  it  should  not  be  construed
     strictly  where  the  filing  of a complaint is delayed
     under justifiable circumstances.   Circumstances  which
     could  warrant  the  extension  of the time-limit would
     include a case where the miner within the 60-day period
     brings the complaint to the attention of another agency
     or to his employer, or the miner fails to meet the time
     limit because he is misled as to  or misunderstands his
     rights under the Act.

S. Rep. 181, 95th Con., 1st Sess. 36 (1977),  reprinted in Senate
Subcommittee on Labor,
Committee  on Human Resources, 95th Cong., 2d Sess.,  Legislative
History of the Federal Mine
Safety and Health Act of 1977, at 624 (1978).

     The  imposition  of  a  time  limit  for  instituting  legal
proceedings is primarily designed to
to assure fairness to the opposing party by:

     . . .  preventing  surprises  through  the  revival  of
     claims that have been allowed to slumber until evidence
     has  been lost, memories have faded, and witnesses have
     disappeared.  The theory is that even if one has a just
     claim  it  is unjust not to put the adversary on notice
     to defend within the  period of limitation and that the
     right to be  free  of  stale  claims  in  time comes to
     prevail over the right to prosecute them.

Burnett  v.  N.Y.   Central R.R. Co., 380 U.S. 424,  428  (1965),
quoting R.R. Telegraphers v. REA, 321 U.S. 342, 348-349 (1944).

     I  do not find justifiable  circumstances  that  excuse  the
delay of  over  2 years  in  instituting  this  action.  The tape
cassette  that  triggered  Complainant's decision to  bring  this
action  was in his possession  and  control  from  May  5,  1994,
onward.  He could have listened to it at any time, and his access
to the tape  was  not  interfered  with by any act of Respondent.
The depression attributed to Complainant's  discharge on November
3,  1993,  may explain his distraction and lack  of  interest  or
motivation to  listen  to  the  tape recording of his arbitration
case for over 2 years.  However,  it  did  not  prevent  him from
listening  to the tape.  The shortness of the time limit Congress
set for bringing  actions  under  section 105(c) indicates that a
delay of
over 2 years would require very special  circumstances to justify
the delay.  I find that the response to the Show Cause Order does
not carry that burden.

                              ORDER

     WHEREFORE IT IS ORDERED that the Motion for Summary Decision
is GRANTED, and this proceeding is DISMISSED.


                                William Fauver
                                Administrative Law Judge


Distribution:

Mr. Roldan A. Avilucea, P. O. Box 37, Bayard,  NM  88023 (Certified
Mail)

Thomas J. Kennedy,  Esq.,  Ryley, Carlock  &  Applewhite, 101 North
1st Avenue, Suite  2700, Phoenix, AZ 85003-1973 (Certified Mail)

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