.
PHELPS DODGE MORENCI, INC.
April 26, 1996
WEST 96-64-DM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            April 26, 1996

CLYDE PERRY,                    :  DISCRIMINATION PROCEEDING
               Complainant      :
                                :
          v.                    :  Docket No. WEST 96-64-DM
                                :  MSHA Case No. RM MD 95-18
                                :
PHELPS DODGE MORENCI, INC.,     :  Morenci Branch Mine
               Respondent       :  Mine I.D. 02-00024


           ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE
               A CLAIM UPON WHICH RELIEF MAY BE GRANTED

Before:  Judge Amchan

     In September 1995, Complainant, Clyde Perry, filed a
complaint with the Mine Safety and Health Administration
(MSHA) alleging that he had been discharged by Respondent,
Phelps Dodge, on February 3, 1995, in violation of section
105(c) of the Federal Mine Safety and Health Act.  Material
attached to the complaint indicates that Mr. Perry was
fired either for refusing to provide a urine sample for a
drug test, or for testing positive.

     Complainant Perry apparently injured his right foot
at work on February 16, 1993.  After a month off work, Mr.
Perry claims that Respondent required him to return on
light duty.

     In October, 1993, Complainant states that he was taken
off light duty and required to work as a truck driver.
Perry states further that he requested that his foreman give
him another assignment because driving a truck caused him
to have pain in his right foot, knee and back.  Respondent
apparently declined to provide Mr. Perry with any other
type of work.

     On January 28, 1995, Complainant was asked to provide a
urine specimen for a drug and alcohol test.  Documents
provided by Complainant indicate an accident occurred in
the vicinity in which he was working that evening,
although Mr. Perry was not involved in the accident.
Complainant contends that Respondent's demand for a
urine specimen was unfair and contrary to Respondent's
policies and normal practices.  He was fired either for
failing to cooperate with the test or for testing
positive.

     On November 6, 1995, MSHA informed Complainant that
it had determined that his discharge did not violate
section 105(c) of the Act.  Thereupon, Complainant
initiated this action on his own behalf pursuant to
section 105(c)(3) of the Act.  In February, 1996,
Respondent filed an Answer to the Complaint and a
Motion for a More Definite Statement.

     On February 29, 1996, I issued an Order to Show
Cause to Complainant and an Order to Provide a More
Definite Statement of his claim for relief.  In that
order, I expressed my opinion that Mr. Perry's complaint
did not appear to allege any activity protected by
the Federal Mine Safety and Health Act.

     Complainant responded to my Order three weeks later.
In response to my direction to specify his protected
activities, Mr. Perry replied:

          When I was forced to go back to work almost
     a month I had been off of work, still on crutches
     and medication.  I felt it was unsafe to go back
     to work with doctors orders, and if I did not go
     back to work I would be discharged.  When I was task
     training other employees on buses while I was on
     medication I also complained to the Respondent that
     it was unsafe.  I was also kept in a lower paying
     job, harassed for being off of work for almost the
     whole month of May for medical reasons and was
     told that I was terminated, because I told the
     Respondent that I was unable to perform my duties as
     a truck driver I felt it was unsafe because of
     medication and medical reasons.  I explained to
     Respondent that I could not perform my duties with
     doctors orders to retrain with different type of work.

     Mr Perry stated further that, "[t]he basis for my
belief [that he was the victim of retaliation] is I
complained about my injury and I could not perform my job.
I felt I was unsafe for myself and co-workers to operate
heavy equipment under my condition.  I gave the Respondent
a lost time accident".

     Having reviewed Complainant's response to my Show Cause
Order I hereby dismiss his complaint alleging that his
discharge violated section 105(c) of the Act.  Assuming that
I were to find all the facts alleged by Mr. Perry to be
true, I conclude that they fail to state a claim upon which
relief may be granted under the Act.

     Section 105(c)(1) of the Federal Mine Safety and Health Act
provides that:

          No person shall discharge or in any manner
     discriminate against or cause to be discharged
     or cause discrimination against or otherwise
     interfere with the exercise of the statutory
     rights of any ... miner because such miner ...
     has filed or made a complaint under or related
     to this Act, including a complaint notifying
     the operator or the operator's agent ... of an
     alleged danger or safety or health violation
     ... or because such miner ... has instituted
     or caused to be instituted any proceeding
     under or related to this Act ... or because of
     the exercise by such miner ... of any statutory
     right afforded by this Act.

     The Federal Mine Safety and Health Review Commission
has enunciated the general principles for analyzing
discrimination cases under the Mine Act in Sec. ex rel.
Pasula v. Consolidation Coal Co., 2 FMSHRC  2786 (October
1980), rev'd on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and Sec. ex
rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803
(April 1981).  In these cases, the Commission held that a
complainant establishes a prima facie case of discrimination
by showing (1) that he engaged in protected activity and
(2) that an adverse action was motivated in part by the
protected activity.

     The 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.  If the operator cannot thus rebut the prima facie
case, it may still defend itself by proving that it was
motivated in part by the miner's unprotected activities,
and that it would have taken the adverse action for the
unprotected activities alone.

     Complainant herein has not alleged that he engaged in
activities protected by the Act.  Being injured on the job
is not an activity protected by section 105(c).  Inability
to perform one's tasks, even if due to a work-related
injury, is similarly not within the scope of this provision.
Refusal to take a drug test or testing positive is not
protected activity either -- even if the employer's demand
for such a test is unfair, unwarranted and contrary to the
employer's normal practice[1].

     Finally, I conclude that it is not a section 105(c)
violation to decline to provide alternative employment to a
person who alleges that their physical condition poses a
threat to their safety and the safety of others.  An
employee, who in good faith, believes his condition
threatens others would cease performing such work
activities.  Although it may be a violation to retaliate
against an employee who in good faith asserts that the
continued employment of a co-worker poses a safety hazard,
it is not a violation of the Act for an employer to take the
position that an employee must either be able to perform his
current tasks or seek employment elsewhere.

     In short, I dismiss Mr. Perry's complaint because even if
he were to establish that he was treated unfairly, or in a
discriminatory manner, he would fail to establish a section
105(c) violation.  The Act does not prohibit all
discriminatory or retaliatory conduct.  It prohibits only
such conduct taken with regard to activities protected by
the Act.  Since

**FOOTNOTES**

     [1]:  However, a demand for a urine specimen might
constitute a section 105(c) violation if it was made in
retaliation for other protected activities, such as making
legitimate safety complaints, assisting MSHA in conducting
an inspection, etc.  Complainant has not alleged any such
activities, he has failed to state a claim upon which
relief may be granted.  His discrimination complaint
is therefore DISMISSED.


                             Arthur J. Amchan
                             Administrative Law Judge


Distribution:

Clyde Perry, Box 291, Morenci, AZ  85540 (Certified Mail)

Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln St.,
Suite 2710, Denver, CO  80219 (Certified Mail)

/lh