Local Union 2274, UMWA v. Clinchfield Coal Company

Plain-English summary

After an underground explosion and an imminent-danger withdrawal order idled miners at Clinchfield Coal's McClure No. 1 Mine, Local Union 2274 sought one-week compensation and related relief. The Commission held that the withdrawal order and later allegations of mandatory-standard violations supplied the required connection for compensation. It affirmed the award of compensation and prejudgment interest and upheld the denial of attorney's fees and costs. The Commission changed the interest method for compensation and discrimination awards to the short-term Federal underpayment rate, applying the change retroactively to January 1, 1987. Clinchfield was directed to pay the stipulated compensation with interest.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(k), 814(d)(1), 815(c)(2), 817(a), and 821
• Outcome: The compensation and prejudgment-interest award and denial of attorney's fees and costs were affirmed; the interest formula was modified.
• Key point: Section 111 compensation may include prejudgment interest, and the Commission adopted a uniform short-term Federal underpayment rate for such awards.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
November 28, 1988

LOCAL UNION 2274, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA

   v.               Docket No. VA 83-55-C

CLINCHFIELD COAL COMPANY

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners

              DECISION

BY THE COMMISSION:

 This compensation proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
("Mine Act" or "Act"). We previously remanded this matter for
further proceedings to determine whether a causal nexus existed
between an imminent danger withdrawal order and violations of
mandatory standards and, if such a nexus were found, to award
specific sums of compensation due miners idled by that order.
8 FMSHRC 1310 (September 1986). On remand, the parties stipulated
that such a nexus existed and Commission Administrative Law Judge
Gary Melick awarded compensation including prejudgment interest but
denied the claim of complainant United Mine Workers of America
("UMWA") for attorney's fees and costs. 9 FMSHRC 1276 (July 1987)
(ALJ). We granted petitions for discretionary review filed by both
parties. For the reasons that follow, we affirm the judge's award
of prejudgment interest on the compensation due and his denial of
attorney's fees and costs. We further announce a modification
in the method of calculating interest in both compensation and
discrimination cases arising under the Mine Act.

               I.

           Factual and Procedural
              Background

The compensation claim at issue arose following an underground
explosion on June 21, 1983, at the McClure No. 1 underground coal
mine of Clinchfield Coal Company ("Clinchfield") located in Dickerson
County,

~1494
Virginia. On the morning of June 22, 1983, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA")
issued to Clinchfield a withdrawal order, pursuant to section 103(k)
of the Mine Act, 30 U.S.C. $ 813(k), affecting the entire mine.
Later hat same morning, the inspector issued to Clinchfield an
imminent danger withdrawal order, under section 107(a) of the Act,
30 U.S.C. $ 817(a), also affecting the entire mine. The imminent
danger order was terminated on July 18, 1983, and on September 30,
1983, the UMWA filed a complaint for one-week compensation pursuant
to the third sentence of section 111 of the Act on behalf of
the miners idled due to the imminent danger order. 1/

On March 26, 1984, MSHA issued to Clinchfield one citation

and four withdrawal orders pursuant to section 104(d)(1) of the Act,
30 U.S.C. $ 814(d)(1), three of which alleged that the cited
violations had resulted in a methane ignition causing the June 21
explosion at the McClure No. 1 Mine.

In a summary decision issued on July 23, 1984, the Commission

1/ In relevant part, section 111 of the Act, as codified, provides:

 Entitlement of miners to full compensation

           [1] If a coal or other mine or area of such
 mine is closed by an order issued under section 103,
 section [104], or section [107], all miners working
 during the shift when such order was issued who are
 idled by such order shall be entitled, regardless
 of the result of any review of such order, to full
 compensation by the operator at their regular rates of
 pay for the period they are idled, but for not more
 than the balance of such shift. [2] If such order is
 not terminated prior to the next working shift, all
 miners on that shift who are idled by such order shall
 be entitled to full compensation by the operator at
 their regular rates of pay for the period they are idled,
 but for not more than four hours of such shift. [3] If
 a coal or other mine or area of such mine is closed by
 an order issued under section [104] or section [107] of
 this title for a failure of the operator to comply with
 any mandatory health or safety standards, all miners who
 are idled due to such order shall be fully compensated
 after all interested parties are given an opportunity for
 a public hearing, which shall be expedited in such cases,

and after such order is final, by the operator for lost
time at their regular rates of pay for such time as the
miners are idled by such closing, or for one week,
whichever is the lesser.

30 U.S.C. $ 821 (sentence numbers added).

~1495
administrative law judge originally assigned to hear the case
denied the UMWA's compensation claim. 6 FMSHRC 1782 (July 1984)
(ALJ). Despite taking official notice of MSHA's accident
investigation report, he regarded as decisive MSHA's failure to
actually modify the imminent danger order to expressly allege a
violation of a mandatory standard and, accordingly, dismissed the
compensation claim. 6 FMSHRC at 1784. The Commission granted the
UMWA's petition for discretionary review.

 In our decision reversing the judge, we held that: the

initial section 103(k) control order did not preclude MSHA's
subsequent issuance of the section 107(a) imminent danger
withdrawal order and for purposes of section 111 one-week
compensation, the mine was closed by" and the miners were idled
"due to" the imminent danger order; an imminent danger order need
not itself allege a violation of a mandatory standard in order to
trigger entitlement to one-week compensation; and allegations of
violations cited subsequently by MSHA in section 104 citations or
orders may supply the required nexus between the imminent danger
order and a violation of a mandatory standard. 8 FMSHRC at 1313-14.
We noted that Clinchfield had not contested the subsequently issued
section 104(d)(1) citation and withdrawal orders and that the UMWA
had asserted that the allegations of violation contained therein
provided the requisite nexus. 8 FMSHRC at 1314. We remanded for a
determination whether such nexus existed and, if so, for award of the
specific sums of compensation due the miners idled by the imminent
danger order. Id. 2/

In subsequent proceedings before Judge Melick, the parties

stipulated that "a causal nexus existed between the 107(a) order
issued to Clinchfield's McClure No. 1 Mine ... and a violation of a
mandatory standard in the ... Mine." 9 FMSHRC at 1277. 3/ They also
stipulated to a list of miners on whose behalf the UMWA was seeking
compensation, their rates of pay as of June 23, 1983, and the amount
of compensation sought on behalf of each such miner. Id. The UMWA
further requested interest on the compensation award and also sought
attorney's fees and costs. In preservation of its appeal rights,
Clinchfield repeated the same legal arguments in objection to
compensation that it had raised before the Commission during the
preceding review of the case.

The judge rejected Clinchfield's objections to compensation

as having been disposed of by our first decision in this matter.
9 FMSHRC at 1277. Based on the parties' stipulations, he found that a
causal nexus existed between the imminent danger withdrawal order and

an underlying violation of a mandatory standard. 9 FMSHRC at 1276-77.
Accordingly, he concluded that the miners on the stipulated list were

2/ Our Clinchfield decision was one of three similar cases issued the
same date resolving significant compensation issues. The other two
decisions were Loc. U. 1889, UMWA v. Westmoreland Coal Co., 8 FMSHRC
1317 (September 1986); and Loc. U. 1609, UMWA v. Greenwich Collieries,
Div. of Penn. Mines Corp., 8 FMSHRC 1302 (September 1986).

3/ Because the judge who had originally heard the case had retired
from the Commission, the case was reassigned on remand.

~1496
entitled to the lost wages set forth in the list. Citing Peabody
Coal Co., 1 FMSHRC 1785 (November 1979) and Youngstown Mines Corp.,
1 FMSHRC 990 (August 1979), cases arising under the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. $ 801 et seq.
(1976)(amended 1977)("the 1969 Coal Act"), he granted the UMWA's
request for prejudgment interest on the compensation. Id. He
ruled that the interest was to be calculated according to the
formula established for determining interest on back pay awards in
discrimination cases set forth in Secretary on behalf of Bailey v.
Arkansas-Carbona Co., 5 FMSHRC 2042 (December 1983). Id. Finally,
relying on Alyeska Pipeline Service Co. v. The Wilderness Soc.,
421 U.S. 240 (1975), he denied the UMWA's claims for attorney's fees
and costs. Id.

Before us the UMWA contests the judge's denial of attorney's

fees and costs. The UMWA additionally requests the Commission to
modify the method of calculating interest to accord with the revised
back pay interest formula of the National Labor Relations Board
("NLRB") announced in New Horizons for the Retarded, Inc., 283 NLRB
No. 181, 125 LRRM 1177 (May 28, 1987). Clinchfield reasserts its
legal objections to awarding compensation in this matter. It also
challenges the judge's award of interest and, in any event, notes
that the NLRB's new method of calculating interest has caused the
Commission's Arkansas-Carbona formula to become outdated.

               II.

             Disposition

A. Clinchfield's objections to compensation

 Clinchfield has reiterated its basic objections to an award

of compensation in this case -- that the miners were not idled due
to the imminent danger order because the mine had been closed
initially by the section 103(k) control order, and that the imminent
danger order cannot trigger compensation because it did not allege
on its face a violation of a mandatory standard. These same points
were raised, considered, and decided adversely to Clinchfield in our
first decision. See 8 FMSHRC at 1313-14. See also Westmoreland,
supra, 8 FMSHRC at 1323-30. However, in a letter submitted after
its brief and served on all parties in this case, Clinchfield asserts
that the intervening decision in Int'l U., UMWA v. FMSHRC, 840 F.2d 77
(D.C. Cir. 1988), rev'g Loc. 5817, UMWA v. Monument Mining Corp.,
etc., 9 FMSHRC 209 (February 1987), supports its argument that an
imminent danger order must allege on its face a violation of a

mandatory standard in order to initiate an award of one-week
compensation. We disagree.

Int"l U., UMWA involved the distinct issue of an

owner-operator's liability for compensation based upon a withdrawal
order issued to an independent contractor. In reversing a split
opinion by the Commission holding that "the 'operator' responsible
for the conditions or violations underlying the section 111 claim is
the sole operator responsible for compensating the idled miners"
(Monument Mining, supra, 9 FMSHRC at 212), the Court commented upon
one of its prior decisions

~1497
concerning the compensation provisions of the 1969 Coal Act:

         Some of the language in the ... [Commission's
Monument Mining] opinion could be read ... to
suggest a role for the Administrative Law Judge in
the section 111 compensation proceeding in determining
whether the cited operator was alone responsible for
the underlying violation. Such an interpretation would
be in tension with this court's holding (in a case under
the Coal Act) that a compensation order could be based
only on the withdrawal order "as issued," and not on the
underlying facts which might have justified a broader order.
District 6, UMWA v. Department of the Interior Bd. of Mine
Operations Appeals, 562 F.2d 1260, 1263 (D.C. Cir. 1977).

840 F.2d at 80 n.5 (emphasis added). See also 840 F.2d at 84 n. 14.
The District 6 decision cited by the court was an opinion under the
1969 Coal Act affirming Billy F. Hatfield v. Southern Ohio Coal Co.,
4 IBMA 259 (1975), which we discussed and distinguished in our
Westmoreland compensation decision. 8 FMSHRC at 1328-29 n.5.

 In the District 6 proceedings, the D.C. Circuit and the

Interior Board of Mine Operations Appeals had rejected the UMWA's
claim that it should be permitted to allege and prove in a
compensation proceeding that an imminent danger withdrawal order was
actually based on conditions that would have justified issuance of a
withdrawal order pursuant to 30 U.S.C. $ 814(c)(1976)(amended 1977),
based on an operator's "unwarrantable failure" to comply with a
mandatory health or safety standard. If established, such proof
would have supported a claim for one-week compensation. See 4 IBMA
at 265-69; 562 F.2d at 1263-68. 4/ As we explained in Westmoreland,
we believe that the holding in District 6 was based on the conclusion
that the UMWA's attempt to prove unwarrantable failure in pursuit of
a larger award of compensation improperly usurped the Secretary's
enforcement and prosecutory role in issuing appropriate withdrawal
orders. 8 FMSHRC at 1328-29 n.5. Here, however, the Secretary as the
enforcer of the Act has issued the requisite imminent danger order
capable of supporting a one-week compensation claim under section 111
since such order was issued due to Clinchfield's failure to comply
with mandatory safety standards. The UMWA has not been attempting to
prove "underlying facts which might have justified a broader order"
(Int'l U., UMWA, supra, 840 F.2d at 80 n.5). A District 6 issue would
be posed in this matter if the Secretary had issued only the initial
section 103(k) control order and, absent an imminent danger order or a
section 104 withdrawal order,

4/ Under the Coal Act only a withdrawal order based on the
operator's unwarrantable failure could trigger entitlement to one-week
compensation. See 30 U.S.C. $ 820(a)(1976)(amended 1977). In
contrast, under the third sentence of section 111 of the Mine Act
(n.1 supra), one week compensation may be triggered when imminent
danger orders are issued under section 107 or withdrawal orders are
issued under section 104.

~1498
the UMWA had sought to prove, in pursuit of a one-week compensation
claim, that the underlying conditions would have justified issuance
of an imminent danger order or a section 104 withdrawal order. Thus,
the concerns addressed in District 6, and referred to in passing by
the court in Int'l U., UMWA, are not present here. 5/

Finally, we reemphasize our view that the argument that a

section 107 imminent danger order must allege a violation on its
face in order to initiate one-week compensation is at odds with
section 111, the purposes of the Act, and the last sentence of section
107(a), 30 U.S.C. $ 817(a), which expressly. permits the subsequent
issuance of a citation for any violation allegedly involved in the
imminent danger. See Westmoreland, 8 FMSHRC at 1327-28. As was the
case in this matter, imminent danger orders are often issued under
urgent circumstances. As stated in Westmoreland:

          [T]he overriding purpose of an imminent danger
 order is the immediate withdrawal of miners.... [D]ue
 to the dangerous conditions giving rise to the order,
 inspection or investigation of the area to determine
 the existence of any underlying violations may be
 delayed necessarily until long after the order was
 issued or until the imminent danger no longer exists.

8 FMSHRC at 1328 (emphasis in original).

For the foregoing reasons, and as more fully discussed in our

prior decision, we reaffirm our rejection of Clinchfield's objections
to one-week compensation in this matter.

B. Award of attorney's fees and costs

The UMWA seeks review of the judge's denial of its request for

attorney's fees and costs. The judge based his denial on Alyeska

5/ In this proceeding we have permitted the UMWA to attempt to
establish a nexus between the issuance of an imminent danger
withdrawal order and an underlying violation of a mandatory
standard. However, a showing of nexus -- since stipulated to by
the parties -- does not usurp any Secretarial role, because the
Secretary fulfilled her role by issuing the imminent danger order
and a citation and several withdrawal orders containing allegations
of violations of mandatory standards. Section 111 does not require
the Secretary to set forth compensation-relevant nexus findings in
her withdrawal orders or related enforcement actions. See

Westmoreland, 8 FMSHRC at 1327-30. As we made clear recently in
a similar context, citations and withdrawal orders issued by the
Secretary integrally pertain to the Act's enforcement and civil
penalty scheme, while the nexus concept referred to herein arises
solely in the compensation sphere. See Loc. U. 2333, UMWA v. Ranger
Fuel Corp., 10 FMSHRC 612, 620-21 (May 1988). As the D.C. Circuit
observed in Int'l U., UMWA, the Secretary plays no role in
compensation proceedings. 840 F.2d at 81-82 & n.6.

~1499
Pipeline, supra, in which the Supreme Court endorsed the "American
Rule" that attorney's fees are not ordinarily recoverable by the
prevailing party in federal litigation in the absence of statutory
authorization. See 421 U.S. at 247-71. In decisions issued one month
after the judge's decision in this matter, we concluded that private
attorney's fees are not awardable under the Mine Act to a complainant
who retains private counsel in a discrimination complaint proceeding
brought by the Secretary of Labor on the complainant's behalf pursuant
to section 105(c)(2) of the Act, 30 U.S.C. $ 815(c)(2). Odell Maggard
v. Chaney Creek Coal Corp., etc., 9 FMSHRC 1314, 1322 23 (August
1987), pets. for review filed, No. 87-1494 (D.C. Cir. September 17 &
21, 1987); John A. Gilbert v. Sandy Fork Mining Co., Inc., 9 FMSHRC
1327, 1339 n.6 August 1987), pet. for review filed, No. 87-1499
(D.C. Cir. September 21, 1987).

 We based our attorney's fees holding in Maggard and Gilbert

upon our acquiescence, absent contrary judicial authority, in the
Fourth Circuit's decision in Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 643-44 (4th Cir. 1977), reversing the Commission's
former policy announced in Secretary on behalf of Robert A. Ribel
v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2021-27 (December 1985).
The Fourth Circuit generally founded its rejection of private counsel
fees and costs in section 105(c)(2) discrimination proceedings upon
Alyeska Pipeline's affirmation of the "American Rule." 813 F.2d
at 643. The Fourth Circuit discerned no statutory authorization for
private counsel fees and costs in connection with a discrimination
complaint brought by the Secretary pursuant to section 105(c)(2), and
contrasted that situation with section 105(c)'s express allowance of
such fees and costs to successful complainants in a section 105(c)(3)
proceeding. 813 F.2d at 644. Thus, under the "American Rule" applied
to the Mine Act as set forth in the Fourth Circuit's Ribel decision,
attorney's fees are not available to prevailing litigants under the
Mine Act, except where the Act specifically authorizes such fees.

Neither section 111 nor any other provision of the Mine Act

provides for an award of attorney's fees and costs in compensation
proceedings. The Act's legislative history is silent on this subject.
In the absence of specific statutory authorization, therefore, we
follow the "American Rule" in this context and affirm the judge's
disallowance of attorney's fees and costs. Alaskan Pipeline, supra;
Ribel (4th Cir.), supra; Maggard, supra; and Gilbert, supra.

C. Interest issues

Two major interest issues are presented: whether interest is

due on compensation awards under section 111 and, if so, whether
prejudgment interest may be allowed; also, if interest is available,
how are its rate and amount to be calculated? In cases arising under
the Coal Act, the Commission allowed interest on compensation awards,
and we perceive no reason to adopt a more restrictive rule under the
expanded compensation provisions of the Mine Act.

   1.    Interest on compensation awards and prejudgment
        interest

~1500
With respect to the first issue, interest is the compensation
allowed by law on the use or detention of money (e.g., 45 Am. Jur. 2d,
Interest and Usury $ 1 (1969)), and reflects the value of money over
time. Interest is not a penalty but is merely an appropriate
recompense for the loss over time of the use of money. See, e.g.,
Clark v. Paul Revere Life Ins. Co., 417 F.2d 683, 686 (8th Cir.
1969); United States v. United Drill & Tool Corp., 183 F.2d 998,
999 (D.C. Cir. 1950). As we have analogously determined with regard
to the Mine Act s anti-discrimination provisions:

          The miner [who has suffered discrimination] has
 not only lost money when he or she has not been paid in
 violation of section 105(c), but has also lost the use
 of the money. As the NLRB has stated with regard to
 interest on back pay awards under the National Labor
 Relations Act, "[t]he purpose of interest is to compensate
 the discriminatee for the loss of the use of his or her
 money." Florida Steel-Corp., 231 NLRB 651, 651 (1977).

Arkansas Carbona, supra, 5 FMSHRC at 2050.

Section 111 compensation replaces pay that miners have lost as

the result of an idlement attributable to the issuance of withdrawal
orders specified in section 111. See generally Westmoreland, 8 FMSHRC
at 1323-24. See also Int'l U., UMWA, supra, 840 F.2d at 81-82 & n.6;
see also S. Rep. No. 181, 95th Cong., 1st. Sess. 46-47 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 634-35 (1978) ("Legis. Hist.")
When miners lose pay because of an idling order, they also lose the
use of that pay. Thus, interest on a section 111 award operates to
compensate miners for the loss of use of their money over a period of
time.

 Section 111, like its predecessor, section 110(a) of the Coal

Act, 30 U.S.C. $ 820(a)(1976)(amended 1977), does not expressly
provide for interest on compensation. However, as we recognized in
approving interest on compensation awards under the Coal Act, we
conclude that interest is implied within section III's remedial pay
protection scheme. See Youngstown, supra, 1 FMSHRC at 995-96;
Peabody, supra, 1 FMSHRC at 1792. As we observed in Youngstown:
"It is well settled that the omission of a mention of interest in
[federal] statutes which create obligations does not show necessarily
a Congressional intent to deny interest." 1 FMSHRC at 996, quoting
Philip Carey Mfx. Co. v. NLRB, 331 F.2d 720, 729 (6th Cir.), cert.

den., 379 U.S. 888 (1964). See also, e.g., Int'l Bhd. of Operative
Potters v. NLRB, 320 F.2d 757, 760-61 (D.C. Cir. 1963); United Drill &
Tool Corp., supra, 183 F.2d at 999-1000.

 The principle that a federal statutory obligation may bear

interest even though the statute makes no provision for it is rooted
in Rodgers v. United States, 332 U.S. 371, 373-74 (1947). Under
Rodgers, interest is awardable in such contexts depending upon the
purpose of the statute, whether the statutory obligation in question
is in the nature

~1501
of a debt rather than a penalty, and the interplay of the relative
equities involved. 332 U.S. at 373-74. See also Philip Carey Mfg.
Co., supra, 331 F.2d at 729-30; United Drill & Tool Corp., 183 F.2d
at 999.

 As emphasized already, the purpose of section 111 compensation

is to replace miners' wages lost as a result of idling orders.
Accordingly, the obligation to pay this statutory compensation is in
the nature of a debt owed by the operator to the miner. Plainly,
compensation under section 111 is not a penalty or fine, upon which
an award of interest would be improper. See Rodgers, supra, 332 U.S.
at 374-76; see also Legis. Hist., supra., at 634-35. Further, during
the period of time that a miner has not been compensated, the operator
has retained the use and benefit of that money. As we noted in
Youngstown:

         It is recognized under our legal system that
wage-earners are heavily dependent upon wages, which
more often than not constitute the sole resource to
purchase the necessities of life from day to day....
many wage-earners who are deprived of their wages
doubtlessly find it necessary to borrow money to
sustain themselves and their families, paying rates
of interest ... [to do so].

1 FMSHRC at 996, quoting Philip Carey Mfg. Co., supra, 331 F.2d
at 730. Thus, we perceive no inequity in requiring a mine operator,
liable for section 111 compensation, to repay miners for the time
value of their compensable pay. Therefore, we conclude in agreement
with the judge that interest may properly be included in a
compensation award. See, e.g., Youngstown, supra; Philip Carey Mfg.
Co., supra; Int'l Bhd. of Operative Potters, supra; United Drill &
Tool Corp., supra. 6/

6/ Courts have allowed interest on a wide variety of federal
statutory obligations even though interest was not mentioned in
the applicable statutes. For example, such interest has been
permitted on: back pay awards under the National Labor Relations
Act, 29 U.S.C. $ 151 et seq. (1982)("NLRA"): e.g., Philip Carey Mfg.
Co., 331 F.2d at 729 31; Int'l Bhd. of Operative Potters, 320 F.2d
at 760-61; Reserve Supply Corp. of L. I. v. NLRB, 317 F.2d 785, 789
(2d Cir. 1963); back pay awards under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. $ 2000 et seq. (1982): e.g., EEOC v. Wooster
Brush Co. Employees Relief Ass'n, 727 F.2d 566, 578-79 (6th Cir.
1984); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263

(5th Cir. 1974); awards for wage violations of Fair Labor Standards
Act, 29 U.S.C. $ 201 et seq. (1982): e.g., Marshall v. Hope Garcia
Lancarte, 632 F.2d 1196, 1199 (5th Cir. 1980); Hodgson v. American
Can Co., 440 F.2d 916, 921-22 (8th Cir. 1971); awards to employees
for underpayments by contractors under Walsh Healey Act, 41 U.S.C.
$ 35 et seq. (1982): e.g., Mitchell v. Riegel Textile, Inc., 259 F.2d
954, 956 (D.C. Cir. 1958); and compensation awards to returning
veterans for wrongful refusals to reemploy under the Veterans
Reemployment Rights Act, 38 U.S.C. $ 2021 et seq. (1982), and its
statutory predecessors: e.g., Hembree v. Georgia Power Co., 637 F.2d
423, 429-30 (5th Cir. 1981); Travis v. Schwartz Mfg. Co., 216 F.2d
448, 456 (7th Cir. 1954).

~1502
We reject Clinchfield's argument that because section 105(c) of
the Mine Act refers specifically to an award of interest on back pay
and section 111 does not expressly provide for interest, interest is
unavailable under the latter provision. In enacting the Mine Act,
Congress substantially amended the antidiscrimination provisions of
the Coal Act (30 U.S.C. $ 820(b) (1976)(amended 1977)) to increase
the protection afforded miners and expressly permitted interest on
back pay. In section 111 of the Mine Act Congress also expanded the
compensation that had been available under section 110(a) of the Coal
Act (see Westmoreland, 8 FMSHRC at 1324-25, 1328-29 & n.5). Although
it did not mention interest in the amended compensation provisions,
Congress was addressing two discrete areas of concern in making these
revisions. The fact that interest was included in section 105(c) does
not necessarily imply its exclusion from section 111 -- particularly
in the context of a remedial health and safety statute. See, e.g.,
Herman & McLean v. Huddleston, 459 U.S. 375, 387 n.23 (1983): Bailey
v. Federal Intermediate Credit Bk., 788 F.2d 498, 500 (8th Cir. 1986),
cert. den., U.S. , 55 U.S.L.W. 3287 (U.S. Oct. 20, 1986)
(No. 86-318); Carter v. OWCP, 751 F.2d 1398, 1401-02 (D.C. Cir. 1985).

 It is beyond dispute that section 111 "is remedial in nature

and was not intended by Congress to be interpreted and applied
narrowly." Westmoreland, 8 FMSHRC at 1323. In explicitly
recognizing interest on back pay awards under section 105(c),
Congress was codifying legal and equitable principles that otherwise
would have been implicit (under the Philip Carey line of cases
referred to above). It would be perverse to conclude that
codification of the right to interest in section 105(c) is a
repudiation rather than an affirmation of these legal and equitable
principles insofar as section 111 is concerned. See Carter, supra,
751 F.2d at 1402. Further, we find no express indication in the
Mine Act's legislative history that Congress considered and intended
to exclude interest on compensation or to abrogate the settled
doctrine of federal law that interest may be implied under federal
statutory provisions dealing with remedial or debtor-creditor
relationships. See, e.g., Tri-State Terminals, Inc. v. Jesse,
596 F.2d 752, 755-56 & n.2 (7th Cir. 1979).

In this aspect of its position on review, Clinchfield seeks

to interpose the maxim of statutory construction that expressio unius
est exclusio alterius ("the expression of one thing is the exclusion
of another"). While we agree that this doctrine often plays a
useful role in determining statutory meaning, it is nevertheless
only an aid to construction and not an invariable rule of law.
See, e.g., 2A Sutherland Statutory Construction $$ 47.23 & .25 (Sands

4th ed. 1984 rev.); U.S. Dept. of Justice v. FLRA, 727 F.2d 481, 491
(5th Cir. 1984). All the interpretative considerations discussed
above supporting our recognition of interest in section 111 fairly
effectuate the Act. Most importantly, we discern in the remedial
structure of section 111 a clear congressional purpose requiring full
compensation to idled miners within the framework of that section -- a
purpose that outweighs application of that particular rule of
construction. See, e.g., 2A Sutherland, supra, $ 47.25; Carter,
supra, 751 F.2d at 1401 02; Tri-State Terminals, Inc., supra, 596 F.2d
at 755-56.

~1503
The essential reasons underlying our preceding conclusions
regarding section 111 interest dictate that it take the form of
prejudgment interest accruing from the date that the compensable
pay would normally have been paid by the operator until the date
that the compensation due is actually tendered. Prejudgment interest
is not a penalty but is a necessary element of complete compensation
for withheld funds. E.g., Platora Ltd. v. Unidentified Remains,
etc., 695 F.2d 893, 906 (5th Cir.), cert. den., 464 U.S. 818 (1983).
Indeed, in the absence of compelling equitable considerations to the
contrary, prejudgment interest is ordinarily the form of interest
awarded on monetary obligations due. E . Stroh Container Co. v.
Delphi Indus., Inc., 783 F.2d 743-752 (8th Cir.), cert. den., 476 U.S.
1142 (1986). As the Supreme Court has explained:

 Prejudgment interest is an element of complete
 compensation....

           *       *       *

 [I]t serves to compensate for the loss of use of
 money due as damages from the time the claim accrues
 until judgment as entered, thereby achieving full
 compensation for the injury those damages are intended
 to redress.

West Virginia v. United States, supra, 479 U.S. at 310-11 & n. 2.
The cases cited above in n.6 concerning the implication of
interest in federal statutes all contemplated generally, or
authorized specifically, the award of prejudgment interest. See,
e.g., American Can Co., 440 F.2d at 922; Int,l Bhd. of Operative
Potters, 320 F.2d at 760-61; United Drill & Tool Corp., 183 F.2d
at 999-1000. 7/

 Here, from the time of the issuance of the imminent danger

withdrawal order, Clinchfield has had the use of the compensable pay
at issue. See, e.g., Stroh Container Co., supra, 783 F.2d at 752;
American Can Co., 440 F.2d at 922. To make the miners whole for the
time value of their compensable pay, therefore, we hold in affirmance
of the judge that interest is appropriate on sums of compensation due
from the date that the compensable pay would have been paid but for
the idlement until the date that the compensation due is tendered.
This result comports with the interest approach followed in
discrimination cases under Arkansas-Carbona. 5 FMSHRC at 2051-53 &
n.15.

 We disagree with Clinchfield's argument that this outcome is

harsh or punitive. Prejudgment interest is an accepted component of
just and complete compensation. Clinchfield has not demonstrated any
special equitable considerations that might justify an exception in
this

7/ We note that 28 U.S.C. $ 1961 (1982), authorizing postjudgment
interest on monetary judgments in federal civil cases, does not
purport to address the subject of prejudgment interest and does not
bar its award in appropriate cases. E.g., Bricklayers' Pension Trust
Fund v. Taiariol, 671 F.2d 988, 989 (6th Cir. 1982).

~1504
proceeding. While, as Clinchfield points out, this litigation has
followed a protracted course, Clinchfield nevertheless has retained
the benefit of the money involved throughout that period. Finally,
although we do not question Clinchfield's good faith, its good faith
does not preclude assessment of prejudgment interest. E.g., Stroh
Container Co., supra; American Can Co., supra.

   2.   Rate and computation of interest

If interest is to be awarded, both parties urge us to cease

applying the interest rate formula set forth in Arkansas-Carbona,
supra. We conclude that there should be one interest rate method of
computation applicable to both discrimination and compensation cases,
and we agree that it is appropriate to modify the interest formula of
Arkansas-Carbona.

In Arkansas-Carbona, we approved simple interest on back pay

awards under section 105(c) of the Act to provide miners a "full
measure of relief" from illegal discrimination or retaliation.
5 FMSHRC at 2049, 2052. In choosing an appropriate rate of interest,
we considered "the potential cost to the miner both as a 'creditor' of
the operator, and as a potential borrower from a lending institution
under real economic conditions." 5 FMSHRC at 2050. In addition, we
endeavored to select an interest rate "flexible enough to reflect
economic and market realities, but not so complex in application as to
place an undue burden on the parties and on judges...." Id. In light
of these criteria, we adopted in that case the "adjusted prime rate"
announced semi-annually by the Internal Revenue Service ("IRS") under
the then applicable version of 26 U.S.C. $ 6621 for purposes of fixing
interest on overpayment and underpayment of taxes. Arkansas-Carbona,
5 FMSHRC at 2050-51. 8/ In so doing, we followed the practice of the
NLRB, which applied the adjusted prime rate as the interest rate on
back pay awards under the NLRA. See Olympia Medical Corp., 250 NLRB
146, 147 (1980); Florida Steel Corp., 231 NLRB 651 (1977). At the
same time, we adopted the "quarterly method" of calculating the amount
of back pay and interest due. 5 FMSHRC at 2051-54.

The Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085

(1986), however, changed the method by which the IRS computes interest
on overpayment and underpayment of taxes, as of January 1, 1987. Use
of the adjusted prime rate as determined by the Federal Reserve Board
was abandoned, and the IRS now uses the "short-term Federal rate."
26 U.S.C.A. $ 6621 (Supp. 1988). This rate is determined by the
Secretary of Treasury based on the average market yield on outstanding
marketable obligations of the United States with remaining periods to

maturity of three years or less. 26 U.S.C.A. $ 1274(d)(1)(C)(i)
(Supp. 1988). The short-term Federal rate is determined for the first
month in each calendar quarter and applies during the first calendar
quarter beginning

8/ The adjusted prime rate is a percentage of the average predominant
rates quoted by commercial banks to large businesses as determined by
the Federal Reserve Board and rounded to the nearest full percent.

~1505
after such month. 26 U.S.C.A. $ 6621(b) (Supp. 1988). 9/ These rates
are rounded to the nearest full percent. 26 U.S.C.A. $ 6621(b)(3)
(Supp. 1988). The overpayment interest rate (paid by the IRS on tax
refunds) is the short-term Federal rate plus 2 percentage points and
the underpayment rate (paid by the taxpayer on additional taxes) is
the short-term Federal rate plus 3 percentage points. 26 U.S.C.A.
$ 6621(a) (Supp. 1988).

In response to this legislation, the NLRB in May 1987

abandoned its use of the adjusted prime rate and chose the
underpayment rate of short-term Federal interest as its interest
rate for back pay awards. New Horizons, supra, 283 NLRB No. 181,
125 LRRM 1177. The NLRB concluded that the short-term Federal rate
corresponds to private economic market forces, is subject to periodic
adjustment, is relatively easy to administer, and, because the rate is
determined on a quarterly basis, mirrors the quarterly method of back
pay calculation. 125 LRRM at 1178.

We agree and select the short-term Federal rate applicable to

underpayment of taxes as the interest rate for compensation awards.
The short-term Federal rate, based on average market yields of
marketable federal obligations, is influenced by private economic
market forces, and captures the "economic and market realities" that
a remedial interest rate should embody. Arkansas-Carbona, 5 FMSHRC
at 2050. It is periodically adjusted and responds to changing
economic conditions. Since the rate is publicly announced well in
advance of the effective date, it also offers reasonable notice to
parties and our judges and would be relatively easy to administer.
Finally, the underpayment rate is reflective of the cost to miners of
borrowing money when deprived of a paycheck and, therefore, tends to
compensate them more fully for their potential losses as borrowers.
See Arkansas-Carbona, supra; Youngstown Mines, 1 FMSHRC at 996.

We note that these same considerations apply with equal force

to the award of back pay under section 105(c) of the Act, the context
in which Arkansas-Carbona was decided. For that reason, and to
enhance the efficiency of the administration of the remedial aspects
of the Act, we adopt, for all cases in which decisions are issued
after the date of this opinion, the short-term Federal underpayment
rate as the interest rate on both compensation and discrimination
awards. Because there would have been no major differences between
the adjusted prime rate approved in Arkansas-Carbona and the
short-term Federal underpayment rate since January 1987, we exercise
our discretion to apply the short-term rate retroactively to January
1987. Cf. New Horizons, 125 LRRM at 1178.

The applicable interest rates with their corresponding daily

rates for back pay and compensation awards from January 1, 1978,
through December 31, 1988, are as follows:

9/ For example, the rate determined in April of a given year applies
to the months of July, August and September of that year.

~1506
January 1, 1978 to December 31, 1979....6% (.0001666 per day)
January 1, 1980 to December 31, 1981...12% (.0003333 per day)
January 1, 1982 to December 31, 1982...20% (.0005555 per day)
January 1, 1983 to June 30, 1983.......16% (.0004444 per day)
July 1, 1983 to December 31, 1984......11% (.0003055 per day)
January 1, 1985 to June 30, 1985.......13% (.0003611 per day)
July 1, 1985 to December 31, 1985......11% (.0003055 per day)
January 1, 1986 to June 30, 1986.......10% (.0002777 per day)
July 1, 1986 to September 30, 1987......9% (.0002500 per day)
October 1, 1987 to December 31, 1987...10% (.0002777 per day)
January 1, 1988 to March 31, 1988......11% (.0003055 per day)
April 1, 1988 to September 30, 1988....10% (.0002777 per day)
October 1, 1988 to December 31, 1988...11% (.0003055 per day)10/

As to the computation of interest awards, the Arkansas-Carbona

quarterly method has stood the test of time since its announcement in
1983. 5 FMSHRC at 2051-54. Therefore, we retain the quarterly method
of remedial award computation based on use of the four calendar
quarters and substitute the short-term Federal underpayment rates for
the adjusted prime rates.from January 1, 1987, forward. For purposes
of calculating such awards in the compensation sphere, the explanation
and computational example provided in Arkansas-Carbona (5 FMSHRC
at 2051-54) supply the needed guidance and are incorporated herein by
reference. 11/

10/ It is necessary to convert the interest rates announced by the
IRS to daily rates ("daily interest factors") in order to calculate
interest on periods of less than one year. See Arkansas-Carbona,
5 FMSHRC at 2051, 2052-53.

11/ A Federal Register notice summarizing this interest calculation
holding will be published. In the future the Commission's Executive
Director will timely forward to the Commission's Chief Administrative
Law Judge, for dissemination to our judges, appropriate updated lists
of the applicable interest rates and the daily interest factors. The
public may also obtain the lists of relevant interest rates by
submitting written requests addressed to the Commission's Executive
Director, 1730 K St., N.W., Washington, D.C. 20006.

~1507
III.

               Conclusion

 For the foregoing reasons, we affirm the judge's award of

compensation, his disallowance of attorney's fees and costs, and his
award of prejudgment interest on the compensation due. As announced
herein, however, we modify the Arkansas Carbona interest computation
formula by adopting the short-term Federal underpayment rate as the
interest rate applicable to both compensation and back pay awards,
effective as of January 1, 1987. Accordingly, Clinchfield is directed
to pay the complainants the stipulated sums of compensation due
bearing interest from the stipulated date (9 FMSHRC at 1278-84), as
provided for in this decision. 12/

12/ Chairman Ford did not participate in the consideration or
disposition of this matter.

~1508
Distribution

John T. Scott, III, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Edward H. Fitch, Esq.
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Earl R. Pfeffer, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041