Local 5929, United Mine Workers of America v. Big Ridge, Inc.

Plain-English summary

After a roof fall idled the Willow Lake Mine under a section 103(k) order, the union sought one week's compensation for 142 miners and argued that MSHA should have used a section 107(a) withdrawal order. Big Ridge moved for summary decision, contending that section 111 compensation did not apply to the order MSHA issued. The union did not oppose that motion for nearly three and a half years. Judge William B. Moran granted summary decision to Big Ridge and dismissed the claim with prejudice solely for failure to respond, without deciding whether section 111 compensation can arise from a section 103(k) idling order.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.67(d) and 30 U.S.C. § 821
• Outcome: Big Ridge received summary decision and the compensation proceeding was dismissed with prejudice.
• Key point: An unopposed summary-decision motion may end a compensation case without resolution of the underlying statutory question.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

August 3, 2015

LOCAL 5929, UNITED MINE

WORKERS OF AMERICA,

Applicant,

v.

BIG RIDGE INC.,

Respondent.

COMPENSATION PROCEEDING

Docket No. LAKE 2012-88-C

Mine: Willow Lake Mine

Mine ID: 11-03054

ORDER GRANTING
MOTION FOR SUMMARY DECISION

Before:                        Judge Moran

This compensation proceeding is before the Court
upon an application for compensation under section 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 821 (2006) (“Mine Act”). On October 28,
2011, MSHA Inspector Larry Morris issued section 103(k) Order No. 8436067, idling
the Willow Lake Mine, following an unplanned roof fall that occurred the
previous day. On November 3, 2011, Applicant, Local 5929, United Mine Workers
of America (UMWA), filed a claim for one week’s compensation with the
Commission, stating that the mine remained idle, and providing the names and
signatures of the 142 miners seeking compensation. In its letter, Applicant
stated that the order should be modified to a section 107(a) withdrawal order,
since “MSHA would not release the mine until they could be sure the miners[’]
safety was protected.” Letter of November 3, 2011.

On February 13, 2012, the Commission received
Respondent Big Ridge Inc.’s Motion for Summary Decision. Respondent argues that
one week’s compensation is not due under section 111 of the Mine Act because
MSHA’s inspector issued the order under section 103(k), rather than under
section 104 or section 107, and it was the Secretary’s authority to choose what
type of order to issue. Moreover, Respondent contends that a section 107(a)
order would not be appropriate as no violation of a mandatory health or safety
standard had been alleged. Mem. of Law in Supp. of Mot. for Summ. Decision at
4-5.

This case was subsequently assigned
to the Court on March 28, 2012. As of the date of this Order, Respondent’s
Motion remains unopposed. Commission Procedural Rule 67(d), 29 C.F.R. §
2700.67(d), governs oppositions to motions for summary decision, and the
consequences for a party’s failure to oppose such a motion:

(d) Form of
opposition. An opposition to a motion for summary decision shall include a
memorandum of points and authorities specifying why the moving party is not
entitled to summary decision and may be supported by affidavits or other
verified documents. The opposition shall also include a separate concise
statement of each genuine issue of material fact necessary to be litigated,
supported by a reference to any accompanying affidavits or other verified
documents. Material facts identified as not in issue by the moving party shall
be deemed admitted for purposes of the motion unless controverted by the
statement in opposition. If a party does not respond in opposition, summary
decision, if appropriate, shall be entered in favor of the moving party.

29 C.F.R. § 2700.67(d) (emphasis added). Respondent’s Motion
for Summary Decision was filed almost three and a half years ago, and the time
for filing a response has long passed.

As Applicant has failed respond to
Respondent’s motion, thereby failing to prosecute its case in a timely manner, Respondent’s
Motion for Summary Decision is GRANTED. With no submission on the issue
from the UMWA, the Court is without the benefit of a full briefing from both
sides on this issue of importance concerning whether compensation is due under
section 111 where an idling originates under a section 103(k) order. Because of
this significant deficiency, the Court does not address the substantive issue,
electing instead to resolve the motion strictly on the basis of the Applicant’s
procedural failure to respond to the Motion.  

Accordingly, without reaching the
merits of the case, this compensation proceeding is hereby DISMISSED WITH
PREJUDICE.

/s/ William B.
Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Greg Fort and Rodney Shires, Miner Representatives, United
Mine Workers of America, Local 5929, 540 N. Commercial St., Suite #101,
Harrisburg, IL 62948

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway
Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222