O C & W Coal Company

Plain-English summary

Kenneth A. McCool brought a compensation case for himself and others against O C & W Coal Company concerning the No. 6 Mine. The first hearing was continued after McCool said he was working in Texas, and the case was later reset in Tulsa, Oklahoma. McCool failed to appear at the second hearing and did not provide a reason or excuse. Judge John J. Morris concluded that McCool did not intend to prosecute the case and dismissed it.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 811, identified in the order as Section 111 of the Federal Mine Act.
• Outcome: The compensation case was dismissed.
• Key point: Repeated failure to appear at scheduled hearings, without an explanation for the second absence, led to dismissal.

Full text (FMSHRC public release)

CCASE:
KENNETH MCCOOL AND OTHERS V. O C & W COAL
DDATE:
19890316
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

KENNETH A. MCCOOL AND OTHERS, COMPENSATION PROCEEDINGS
COMPLAINANTS
Docket No. CENT 87-71-C
v.
No. 6 Mine
O C & W COAL COMPANY,
RESPONDENT

DECISION

Appearances: No appearance was made for Complainants;
John Stephenson, Minority Stockholder,
O C & W Coal Company, Tulsa, Oklahoma,
for the Respondent;

Before: Judge Morris

 1. Complainant Kenneth A. McCool, appearing pro se, brought

this action against respondent seeking compensation for himself
and others(FOOTNOTE 1) pursuant to Section 111 of the Federal Mine Act,
30 U.S.C. 801 et seq.

 2. The file contains a copy of a voluntary petition under

Chapter Eleven showing the debtor as "Oklahoma, Colorado and
Wyoming Corporation." The petition shows a filing date of October
7, 1987, as Case No. 87-01159 in the United States Bankruptcy
Court for the Eastern District of Oklahoma.

 3. This compensation case was originally set for a hearing

in Tulsa, Oklahoma on August 9, 1988. Complainant McCool and
respondent were advised of said hearing by certified mail.

 4. On August 9, 1988, no party appeared at the hearing

(Transcript, August 9, 1988).

 5. On August 11, 1988, the judge issued an order to show

cause addressed to Complainant McCool.

 6. By letter dated August 21, 1988, McCool stated he was

working in Texas and he stated "(M)aybe we can get another time
appointed."

 7. After correspondence it was indicated an agreeable site

for Complainant McCool would be Amarillo, Texas.

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8. On September 21, 1988, a notice of hearing was issued setting
the case in Amarillo, Texas. The parties were advised by
certified mail.

 9. Subsequently, after a conference call with

representatives of the parties, it was agreed a more convenient
hearing site would be Tulsa, Oklahoma. On November 28, 1988, the
parties were advised by certified mail that the hearing in
Amarillo, Texas was cancelled. Further, the same notice provided
that the case was reset for February 14, 1989, in Tulsa,
Oklahoma. A return receipt by U.S. Mail indicated McCool was
served with the notice of hearing.

 10. On February 14, 1989, Complainant Kenneth A. McCool

failed to appear for the hearing. John Stephenson, Minority
Stockholder, appeared for respondent (Transcript, February 14,
1989).

 11. The judge has not been advised of any reason or excuse

why Complainant McCool failed to appear at the second hearing.

 In view of the foregoing I conclude that Complainant McCool

does not intend to prosecute this case.

   Accordingly, the case is dismissed.

                              John J. Morris
                              Administrative Law Judge

FOOTNOTES START HERE
FOOTNOTE_ONE
1. The "others" are identified only by name; the file does
not contain any addresses for complainants other than McCool.