United Mine Workers of America and Secretary of Labor (MSHA) v. Peabody Coal Company (ALJ decision, November 4, 1983)

Plain-English summary

Laid-off Peabody Coal Company miners challenged a policy requiring them to pay for training or retraining to keep their seniority positions on recall panels. The parties settled the claims of miners who were recalled after paying for training. Judge Joseph B. Kennedy approved the settlement and ordered Peabody to pay $23,076.05 to 134 miners. He dismissed those claims with prejudice upon payment. The claims of miners who were bypassed or not rehired remained pending, so this order did not resolve the full consolidated case.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2) and (3), the Mine Act's discrimination provisions identified in the order.
• Outcome: Partial settlement approved for $23,076.05; recalled miners' claims dismissed upon payment; other claims retained.
• Key point: The settlement compensated recalled miners for training costs while leaving bypassed and unrecalled miners' claims for later decision.

Full text (FMSHRC public release)

CCASE:
(UMWA) ETC. V. PEABODY COAL & SOL (MSHA) DDATE: 19831104 TTEXT:
~1931

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

UNITED MINE WORKERS OF
DISCRIMINATION PROCEEDINGS
AMERICA (UMWA),
ON BEHALF OF
Docket No. KENT 82-103-D
JAMES ROWE, ET AL.
MADI CD 81-23

DELMAR SHEPARD,
Docket No. KENT 82-104-D
MADI CD 82-01

JERRY D. MOORE,
Docket No. KENT 82-105-D
MADI CD 82-05

LARRY D. KESSINGER,
Docket No. KENT 82-106-D
MADI CD 82-04

JAMES RUSSELL,
Docket No. LAKE 82-83-D
VINC CD 81-23

HOWARD COGNION,
Docket No. LAKE 82-84-D
COMPLAINANTS
VINC CD 81-26

v. Eastern Division Operations

PEABODY COAL COMPANY,
RESPONDENT

AND
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
THOMAS L. WILLIAMS,
Docket No. LAKE 83-69-D
COMPLAINANT
VINC CD 83-04

v. Eastern Division Operations

PEABODY COAL COMPANY,
RESPONDENT

DECISION APPROVING SETTLEMENT

Before: Judge Kennedy

The captioned individual and class action discrimination complaints charge the operator with violating section 105(c)(2) ~1932 and (3) of the Mine Safety Law by establishing a policy that required miners in a layoff status to pay for their training or retraining as a condition of maintaining their position of seniority on the layoff panels. Under pressure from MSHA, this policy, which was promulgated in June 1981, was rescinded in April 1983. The parties then attempted to negotiate a settlement. When this failed, the matter came on for a prehearing/settlement conference on August 4, 1983. As a result of that conference, the parties (1) divided the claimants into three categories: Rehires (Category I), Bypassed (Category II), and Not Rehired (Category III); (2) agreed to file a stipulation to settle the claims under Category I; and (3) to negotiate further with respect to settling the other two categories.

At a status hearing on October 13, 1983, the last details of the stipulation for settlement of Category I were worked out. When no settlement for Categories II and III could be achieved the parties agreed to waive an evidentiary hearing and to submit the issue of liability only for determination on the basis of a joint stipulation of material facts not in dispute together with cross motions for summary decision.

A related proceeding, recently reassigned from Judge Fauver, involves a discrimination complaint brought, somewhat belatedly, by the Secretary on behalf of a Category II miner. Secretary of Labor on Behalf of Thomas L. Williams v. Peabody Coal Company, LAKE 83-69-D. I understand the Solicitor will endeavor to join the stipulation of facts filed by the UMWA and Peabody in the retained proceedings so that the Williams case can be decided at the same time the retained cases are determined.

These matters are now before me on the parties Joint Motion to Approve Settlement and to Dismiss with prejudice three of the captioned matters which involve only Category I and the John Does falling in Category I in the class action Docket No. KENT 82-103-D.

While these matters were pending, the Commission decided Secretary and UMWA v. Emery Mining Company, 5 FMSHRC 1391 (1983), appeal pending in the Tenth Circuit. There the Commission held that under section 115 of the Mine Safety Law an operator can require applicants to take new miner training as a precondition of their employment but, if that training is used to satisfy the requirement for training new hires, the operator must reimburse new miners for the costs previously incurred. Emery's refusal to reimburse the new miners was held an unlawful interference with rights guaranteed new hires (but not applicants) under the anti-discrimination provisions of section 105(c)(1) of the Act.
~1933
Earlier, Judge Broderick held that Peabody could require that as a condition of rehire a laid-off surface miner must pay for the training needed to obtain a certificate of training as an experienced underground miner. UMWA v. Peabody, 4 FMSHRC 1338 (1982).

As indicated, the stipulation for settlement presently before me involves only miners who were laid off and then recalled without compensation for the training they paid for in order to comply with the condition for recall established by Peabody in June 1981. I find the reasons advanced on the record at the prehearing conferences of August 4 and October 13, 1983, together with the information provided in the motion and supporting affidavits of the stipulation for settlement show the settlement proposed is in accord with the purposes and policy of the Act.

Accordingly, it is ORDERED that the operator pay forthwith the amount of the settlement agreed upon, $23,076.05, to the 134 miners in Exhibits A and B attached hereto and made a part hereof, and that subject to payment Docket Nos. KENT 82-104-D, LAKE 82-83-D, LAKE 82-84-D, and KENT 82-103-D insofar as it pertains to recalled (Category I) miners be, and hereby are, DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that jurisdiction is retained over Docket No. KENT 82-103-D to the extent that it involves miners falling in the bypassed category (Category II), and the not rehired or recalled category (Category III), as well as over Docket Nos. KENT 82-105-D and KENT 82-106-D which involve miners in the bypassed category (Category II).

Joseph B. Kennedy
Administrative Law Judge
~1934
EXHIBIT A

Name          Docket No.       Mine    Rate      Hours    Total

Delmar Shepherd KENT 83-104-D Ken $11.876 8 $95.00 Earl Greenwood LAKE 82-83-D Sunnyhill $10.698 32 $342.34 James Henry LAKE 82-83-D Sunnyhill $10.698 32 $342.34 Everett Tennant LAKE 82-83-D Sunnyhill $10.698 32 $342.34 Gregory Dobson LAKE 82-83-D Simco $10.698 32 $342.34 Wayne Hart LAKE 82-83-D Sunnyhill $10.698 32 $342.34 James Womer LAKE 82-83-D Simco $10.698 32 $342.34 Richard Beamer LAKE 82-83-D Sunnyhill $10.698 32 $342.34 Frank Cronin LAKE 82-83-D Sunnyhill $10.993 32 $351.78 Mark Wharton LAKE 82-83-D Sunnyhill $10.698 32 $342.34 Howard Cognion LAKE 82-83-D Sunnyhill $10.698 32 $342.34

Total
$3518.40
~1935
EXHIBIT B

Name Mine Rate Hours Total

James J. Williams Sunnyhill $10.698 32 $342.34 Jerry T. Wilson Sunnyhill $10.698 32 $342.34 Roger L. Ginnery Sunnyhill $10.698 32 $342.34 Michael W. DeMoss Sunnyhill $10.698 32 $342.34 John R. Taylor Sunnyhill $10.698 32 $342.34 Loy E. Wiggins Sunnyhill $10.698 32 $342.34 Charles T. Whiteman Sunnyhill $11.765 32 $376.48 Ronald E. Groves Sunnyhill $11.713 32 $374.82 Thomas L. Williams Sunnyhill $11.765 32 $376.48 Howard Harris Sunnyhill $10.698 32 $342.34 Fred Robinson Sunnyhill $10.698 32 $342.34 D. D. Armstrong,Sr. Sunnyhill $10.698 32 $342.34 Kenneth W. Krebs Sunnyhill $10.698 32 $342.34 Ralph O. Erwin Sunnyhill $11.765 32 $376.48 Thomas D. Hewlett Sunnyhill $10.698 32 $342.34 Vernon L. Noland Sunnyhill $12.364 32 $395.65 Ralph E. Jasper Sunnyhill $12.364 32 $395.65 Chester Green Simco $12.612 32 $403.58 Larry Holsky Camp #11 $12.612 32 $403.58 S. William Reed Sunnyhill $12.364 32 $395.65 Victor Strain Sunnyhill $10.698 32 $342.34 Paul Wright Sunnyhill $10.698 32 $342.34 Virgil Smith Camp #11 $10.698 32 $342.34 Tommy Wilson Camp #1 $11.360 8 $90.88 Hershel Knight Ken Surface $11.226 16 $179.62 Jackie Tichenor Ken Surface $11.226 16 $179.62 Burnie C. Cain, Jr. Ken Surface $11.876 16 $190.02 Ronnie Allen Ken Surface $11.512 16 $184.19 Jerry Wilcox Ken Surface $11.512 16 $184.19 Orval Wiles Camp #11 $10.698 8 $85.58 Jerry D. Farris Ken Surface $11.876 16 $190.02 Dan W. Raymer Ken Surface $11.876 16 $190.02 Danny J. Roberts Camp #2 $10.998 8 $87.94 Carl E. Smith Camp #11 $11.765 8 $94.12 Cola Duncan Camp #11 $10.698 8 $85.58 Allen D. Richardson Camp #2 $10.993 8 $87.94 William D. Beadnell Camp #1 $11.765 8 $94.12 Edward L. Harris Camp #11 $10.698 8 $85.58 Carroll R. Jones Ken Surface $11.876 16 $190.02 Raymond E. Higbee Camp #2 $10.993 8 $87.94 Donnie E. Howell Camp #11 $10.698 8 $85.58 Arthur G. Mellott Camp #2 $10.993 8 $87.94 Garry E. Conrad Camp #2 $10.993 8 $87.94 Jimmie W. O'Neal Camp #2 $10.993 8 $87.94 Jeffery L. Wilkins Camp #1 $11.765 8 $94.12 William D. Hayes Camp #1 $10.993 8 $87.94 Truman E. Mannahan Camp #1 $11.765 8 $94.12 F. A. Gregory, Jr. Camp #1 $11.765 8 $94.12 Steven W.Noffsinger Camp #2 $11.765 8 $94.12 Lawrence E. Lee Camp #2 $11.765 8 $94.12
~1936
Harold Pointer River Queen $11.512 16 $184.19 Chapman Merrill Camp #9Prep.$11.469 16 $183.50 Donnie Jackson Camp #9Prep.$11.469 16 $183.50 Jose Martinez, Jr. Camp #9Prep.$11.713 16 $187.41 Charles Camplin River Queen $11.512 16 $184.19 William D. Green Homestead $11.512 8 $92.10 Vernon G. Warren Camp #9Prep.$11.469 16 $183.50 Kerry D. Sweeney Camp #9Prep.$11.713 16 $187.41 Dallas R. Miller Camp #9Prep.$11.469 16 $183.50 Carl Addington AlstoSurface$11.876 8 $95.01 Bobby Shemwell Ken Surface $11.876 8 $95.01 Dannie Harris Ken Surface $11.512 8 $92.10 Thomas M. Foster Camp #1 $11.765 32 $376.48 Vernon W. Hines Alston $11.145 8 $89.16 Stephen M. Raymer Alston $11.512 8 $92.10 Jerald Harper Alston $11.512 8 $92.10 Betty A. Martin Sinclair #2 $10.698 8 $85.58 Donald R. Sadler Sinclair #2 $10.993 8 $87.94 David W. Wester Sinclair #2 $10.698 8 $85.58 John Iler Ken Surface $11.512 8 $92.10 Stephen Goode Ken Surface $11.512 8 $92.10 David D. Shocklee Ken Surface $11.876 8 $95.01 Anna J. Johnson Ken Surface $11.145 8 $89.16 Randy G. Scott Ken Surface $11.876 8 $95.01 Dwayne A. Hill Ken Surface $11.512 8 $92.10 Delmar J. Parrent River Queen $11.145 8 $89.16 Steven W. Geary Homestead $11.145 8 $89.16 Robert J. Richard Ken Surface $11.512 8 $92.10 Wesley L. Lake Ken Surface $11.876 8 $95.01 Carlos R. Goff Homestead $11.876 8 $95.01 Michael E. Davis Homestead $11.512 8 $92.10 Darrell L. Rice River Queen $11.512 8 $92.10 Ellis J. Thompson Homestead $11.512 8 $92.10 Mark Killingsworth Camp #9Prep.$11.876 8 $95.01 Damon E. Robinson Gibraltar $11.876 8 $95.01 Charles J. Moegling Gibraltar $12.527 8 $100.22 Bobby D. Gentry Alston $11.876 8 $95.01 Jerrold L. James River Queen $11.512 8 $92.10 James M. Brown Gibraltar $12.612 8 $100.90 Liston Wright Ken Surface $11.415 16 $182.64 Melvin Johnson WaltonCreek $10.698 8 $85.58 Donnie J. Jackson Ken #4 $10.993 8 $87.94 Jimmy R. Asher Ken Surface $11.445 16 $180.64 Charles D. Camplin Ken #4 $10.698 8 $85.58 Charlie Crabtree Ken #4 $10.698 8 $85.58 William D. Greene Ken #4 $10.698 8 $85.58 John Isbell Ken Surface $11.512 16 $184.19 Kerry R. Sweeny Ken #4 $10.698 8 $85.58 Tommy W. West Ken Surface $11.512 16 $184.19 Elmer R. Atherton Ken Surface $11.512 16 $184.19 Ralph F. Shephard Ken Surface $11.512 16 $184.19 Ellis Randolph Camp #1 $11.765 8 $94.12 William B. Jones Ken Surface $11.876 16 $190.02 Roger D. Sims Ken Surface $11.876 16 $190.02
~1937
George K. Whitten Camp #11 $10.993 8 $87.94 Cary Graham Camp #1 $11.765 8 $94.12 Vernon Keeling Camp #11 $10.698 8 $85.58 Marvin Crick Camp #9Prep.$11.713 16 $187.40 James Ellis Camp #1 $10.698 8 $85.58 James Milligan Camp #11 $11.765 8 $94.12 Jerry Moore Camp #11 $11.765 8 $94.12 Rickie Williams Camp #9 $11.713 16 $187.41 Clifton Stewart Ken Surface $11.876 16 $190.02 Kenneth Sullivan Camp #9Prep.$11.713 16 $187.40 John D. Zachery Camp #2 $10.993 8 $87.94 Ronnie L. Gossett Camp #11 $11.765 8 $94.12 Otis Halcomb Camp #9 $11.713 16 $93.70 John Chinn Camp #1 $11.765 8 $94.12 Roger Travis Camp #2 $10.993 8 $87.94 Lonnie Neumann Camp #11 $11.765 8 $94.12 Kenneth Cardwell Camp #11 $11.765 8 $94.12 Roy L. Miller Camp #2 $10.993 8 $87.94 Dickie W. Rock Ken #4 $10.698 8 $85.58

Total
$19,557.65