<DOC>
[DOCID: f:asarco.wais]

 
ASARCO, INC.
January 24, 1997
CENT 95-8-RM


        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, 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 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 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. 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.


                              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 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.