United Steelworkers, Local No. 5114, on behalf of Miners v. Hecla Limited

Plain-English summary

Hecla failed to take stress-gauge readings required by an amendment to a section 103(k) order at the Lucky Friday Mine. Nineteen miners continued working in the affected area until a second rock burst led to their withdrawal, while the union sought compensation for 218 miners idled during the full 19-month life of the original order. In this first-impression ruling, the Commission held that the relevant order was the specific amendment whose violation caused miners to work when they should have been withdrawn. It affirmed double compensation totaling $13,150.48 for the 19 miners who worked during the eight-day noncompliance period, not broader compensation for miners already idled under the original order.

Decision snapshot

• Governing authority: 30 U.S.C. § 821
• Outcome: Compensation of $13,150.48 to 19 miners was affirmed; the claim for 218 miners over the full order period was rejected.
• Key point: Fourth-sentence section 111 compensation requires a causal link to the specific violated order and covers miners who worked when compliance would have required their withdrawal.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

UNITED
STEELWORKERS, LOCAL          :

NO.
5114, ON BEHALF OF MINERS        :                                

:         Docket No. WEST 2012-466-CM

v.                                              
:                               

:                                

HECLA
LIMITED                                           :                                

BEFORE:
Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY
THE COMMISSION:

This
proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act” or “Act”). At issue is a claim for compensation for miners under
the fourth sentence of section 111 of the Act.[1]
This is a matter of first impression.

United
Steelworkers, Local No. 5114 (“United Steelworkers”) brought the compensation claim
in response to a failure by Hecla Limited to comply with an amendment to a
section 103(k) order.[2]
That failure caused miners to work underground during a period they should have
been withdrawn. The Judge applied the statutory language to the amendment, and
concluded that compensation was owed to 19 miners who, during the eight days
between issuance of and compliance with the amendment, worked when they should
have been withdrawn. 36 FMSHRC 3345 (Dec. 23, 2014) (ALJ); 37
FMSHRC 243 (Feb. 4, 2015) (ALJ). United Steelworkers contends that the
statutory language applies to the entire section 103(k) order, and that
compensation should be paid to the 218 miners idled by the order during the 19
months between issuance and termination of the order.

We
conclude that the Judge correctly determined the compensation available under
the fourth sentence of section 111.

I.

Factual Background

The
relevant facts are undisputed. On November 16, 2011, a rock burst[3] occurred in
the 54 Ramp and 5900 main haulage travelways of an underground lead, zinc and
silver mine, the Lucky Friday Mine, owned by Hecla. The Department of Labor’s
Mine Safety and Health Administration (“MSHA”) issued section 103(k) Order No.
8605614, requiring withdrawal of miners from the affected area. MSHA subsequently
modified the order several times to allow limited activity in the affected area.
Amendment 3, issued on November 30, 2011, required the installation of stress
gauges in the 5900 main haulage drift.[4]
Amendment 5, issued on December 6, 2011, in part required Hecla to monitor
those stress gauges at the start and end of each shift, and to withdraw miners
from the affected area in the event of detectable movement or cracking (i.e.,
geological stress) in the main haulage travelways.

On
December 14, 2011, a second rock burst occurred in the 5900 pillar. Shortly after
miners were withdrawn from the area, MSHA issued section 103(j) Order No.
8605622, which was then amended to a section 103(k) order. The order prohibited
activity in all underground areas of the mine, including those addressed
in Order No. 8605614. Order No. 8605622 was subsequently modified to allow
access for repairs and abatement.

On
December 21, 2011, MSHA issued a citation alleging that Hecla “worked in the
face of” Order No. 8605614 by failing to perform the last stress gauge reading
prior to the second rock burst. The citation notes that, if the reading had
been taken, “it may have indicated high levels, which would have removed miners
from the 2nd rock burst.” 36 FMSHRC at 3350 n.10. The parties ultimately
reached a settlement regarding this citation.

MSHA
terminated both section 103(k) orders on June 12, 2013, upon determining that
all related cited conditions had been abated.

II.

Procedural History

In December
2011, Hecla contested the two section 103(k) orders. United Steelworkers filed
its compensation claim the following month. The compensation claim noted that
Hecla had been cited for working in violation of Order No. 8605614, and sought
compensation for all miners idled by the order between its issuance and termination.

The issue in Hecla’s
contest proceeding was whether MSHA acted in an arbitrary or capricious manner
by maintaining Order No. 8605614 after Order No. 8605622 was issued, given that
the later order encompassed all underground areas of the mine. The Judge noted testimony
from MSHA inspectors that, while elements of the earlier order had been
superseded, dangerous conditions still remained in the affected area. The Judge
concluded that MSHA’s decision to “spotlight” a particularly dangerous area that
still required work was not arbitrary or capricious. 36 FMSHRC 2749, 2754 (Oct.
29, 2014) (ALJ). Hecla had argued that, because the later order made it
impossible to comply with the earlier order, Order No. 8605614 was superseded,
mooted and/or terminated when Order No. 8605622 was issued. The Judge noted
that such arguments would be relevant in the related compensation claim, but
found that they were not determinative in the contest matter. Id. at
2753 n.8, 2754 n.10.

After the Judge
issued his decision in the contest proceeding, the parties filed motions for
partial summary decision in the compensation proceeding, regarding all elements
of the claim except the final dollar amount. In its motion, United Steelworkers
clarified that its claim was brought under the fourth sentence of section 111,
and arose when the operator failed to take the stress gauge readings required
by Order No. 8605614.

The Judge issued
an order detailing the scope of compensation available under the fourth
sentence claim. 36 FMSHRC at 3354. The Judge concluded that Amendment 5 issued
on December 6, 2011 was the relevant “order” with a nexus to the compensation
claim. He reasoned that MSHA issued the citation for the violation of the
section 103(k) order for Hecla’s failure to monitor the stress gauges, which
amendment 5 required. Id. at 3350. Accordingly, he concluded that
compensation began on December 6, 2011, when the amendment was issued, and ended
on December 14, 2011, when Hecla could no longer comply with the monitoring
requirement of the amendment due to the issuance of Order No. 8605622. Id. at
3351. The Judge held that 19 miners were entitled to compensation because they
worked in the affected area between Hecla’s failure to take the reading and the
withdrawal of miners after the second rock burst, and because they were working
underground when they would otherwise have been withdrawn if Hecla had taken the
stress gauge reading. Id. at 3353. Based on the Judge’s order and the
parties’ stipulations, a final decision was issued ordering a total payment of
$13,150.48 to 19 miners. 37 FMSHRC at 245.

United
Steelworkers filed a petition for discretionary review, which the Commission
granted. In its petition, United Steelworkers claims the Judge erred by focusing
on the amendment and limiting compensation to miners who worked between the
triggering event  (the failure to comply with the requirement to monitor the
stress gauges), and the second rock burst, rather than fully compensating all
miners idled by Order No. 8605614.

III.

Disposition

Section 111 provides a “graduated scheme of
increasing compensation commensurate with increasingly serious operator
conduct.” Local Union 1261, District 22, UMWA v. Consolidation Coal Co.,
11 FMSHRC 1609, 1613 (Sept. 1989), aff’d, 917 F.2d 42 (Oct.
1990). This scheme is both remedial and limited in nature, in order to balance
the competing interests of miners and mine operators. The first two sentences provide
compensation for time actually idled, not to exceed four hours, to all miners
working a shift or scheduled to work the next shift when a section 103, 104 or
107 order is issued (“shift compensation”). The third sentence provides
compensation, not to exceed one week, to miners actually idled by a section 104 or
107 order issued for a failure to comply with a mandatory standard. The fourth
sentence provides that, “if an operator fails to comply with a withdrawal order
issued under sections 103, 104, or 107, miners who otherwise would have been
withdrawn are entitled to full compensation at their regular rates of pay, in
addition to pay received for work performed after issuance of the order, until
such time as the order is complied with, vacated, or terminated.” Id. at
1612-13.

Pursuant
to the statutory language, compensation under the fourth sentence of section
111 involves three elements: (1) a triggering event – a violation, failure or
refusal to comply with a section 103, 104 or 107 order; (2) the entitlement –
full compensation in addition to pay received for all miners who would have
been withdrawn or prevented from entering as a result of the order; and (3) the
period of compensation – beginning with the issuance of the order and ending
when the order is complied with, vacated, or terminated.

In
the context of a failure to withdraw miners in violation of a section 103(k)
order, the fourth sentence of section 111 entitles miners who worked in the
face of the order to double compensation, for the period between the issuance of
the order and withdrawal (compliance) or legal re-entry (vacation or
termination). Here,
the triggering event was a failure to comply with an amendment to a 103(k)
order’s affirmative requirement to monitor stress gauges, rather than a direct
violation of an order to withdraw. We find that the Judge properly determined
the scope of compensation in this unusual circumstance, by focusing on the language,
purpose, and unique elements of a fourth sentence compensation claim.

The first
consideration is the determination of which order was violated when Hecla
failed to monitor the stress gauges. The violation occurs “[w]henever an
operator violates or fails or refuses to comply with any order issued under
section 103, section 104, or section 107 of this Act. . . .” The parties
disagree as to whether the “order” with which Hecla failed to comply was Order No.
8605614, or Amendment No. 8605614-05. As discussed below, the Judge properly
concluded that the amendment is the relevant “order” for determining the scope
of compensation.

The
Commission has held that there must be a causal nexus between the compensation
sought and the designated order. Local Union 781, District 17, UMWA v.
Eastern Associated Coal Corp., 3 FMSHRC 1175, 1178 (May 1981) (finding that
miners idled while a section 103(k) order was in place were not entitled to
compensation, because they were idled pursuant to a collective bargaining agreement
rather than the order); see also Local Union 1889, District 17, UMWA v.
Westmoreland Coal Co., 8 FMSHRC 1317, 1321-22 (Sept. 1986).

This
causal nexus must do more than simply link the order to some form of lost pay. It
must connect the order to the specific type of compensation provided by the sentence
of section 111 under which compensation is sought. Shift compensation is only
available to miners who were working or scheduled to work, but were withdrawn because
the relevant order was issued. Consolidation Coal, 11 FMSHRC at 1616. Third
sentence compensation similarly is “keyed to idlements resulting from section
104 or 107 withdrawal orders issued ‘for a failure of the operator to comply
with any mandatory health or safety standards.’” Local Union 2333, District
29, UMWA v. Ranger Fuel Corp., 10 FMSHRC 612, 620 (May 1988). Fourth
sentence compensation, therefore, must also be “keyed” to the specific
circumstances addressed therein; the relevant order must be connected to the
violation, failure or refusal to comply which resulted in miners working when
they should have been withdrawn.

The
parties agree that this fourth sentence compensation claim arose due to Hecla’s
failure to monitor stress gauges, and that if the stress gauges had been monitored
at the proper time, miners would likely have been withdrawn due to detectable ground
movement that could pose a danger to miners.[5]
The requirement to monitor stress gauges was created when Amendment 5 was issued,
so it was a failure to comply with that requirement which resulted in miners
continuing to work when they should have been withdrawn. Amendment 5 has the
causal nexus to the circumstances entitling miners to compensation under the
fourth sentence of section 111.

We reject United
Steelworkers’ argument that the amendment cannot be an “order” because it is
not an independent issuance and does not require withdrawal. We have previously
held that a modification can support a compensation claim. Local Union 1810,
District 6, UMWA v. Nacco Mining Co., 11 FMSHRC 1231, 1236-37 (July 1989). Moreover,
Amendment 5 does require the withdrawal of miners when high levels of
geological stress are detected. Each sentence of section 111 provides for
compensation in specific circumstances, and “order” must be interpreted consistently
with that purpose.

The
second consideration under the fourth sentence is determining the miners
entitled to compensation. In this respect, the fourth sentence provides “. . .
all miners employed at the affected mine who would have been withdrawn from, or
prevented from entering, such mine or area thereof as a result of such order
shall be entitled to full compensation by the operator at their regular rates
of pay, in addition to pay received for work performed after such order was
issued  . . . .”

The
Judge correctly found that compensation was available to those miners who
worked in the affected area after Hecla failed to monitor the stress gauges. The
fourth sentence provides compensation to miners who would have been withdrawn
if the order had been complied with, but instead performed work. 30 U.S.C. §
821 (miners who “would have been withdrawn . . . as a result of such order” are
entitled to additional compensation beyond “pay received for work performed”). In
other words, it compensates those miners who would not have been working but
for the violation, failure or refusal to comply. If Hecla had complied by
taking the required reading, miners working in the area very likely would have
been withdrawn at that time. Instead, Hecla failed to take the reading, and the
miners working in the area were not withdrawn until the second rock burst
occurred. The Judge correctly limited compensation to those 19 miners who
worked in the area, and thus were exposed to the hazard of another rock burst,
when they should otherwise have been withdrawn pursuant to Amendment 5.

United Steelworkers argues that fourth sentence
compensation also extends to all 218 miners idled as a result of Order No.
8605614 issued on November 16, 2011. Such an interpretation is not consistent
with the fourth sentence, which provides for compensation where there has been
a failure to comply with a withdrawal order (or, under the circumstances of
this case, where there has been a failure to comply with an order and
compliance would have resulted in withdrawing miners), and miners have been
paid for work performed. The text provides compensation for miners who were
working when they would otherwise have been withdrawn. See Consolidation
Coal, 11 FMSHRC at 1613. This is consistent with the legislative history,
which states that “where an operator failed to withdraw miners after the
issuance of a withdrawal order, the miners who worked despite the order
were entitled to their compensation for such work, and the compensation they
would have been entitled to under this section if they had in fact been
withdrawn.” S. Conf. Rep. No. 95-461, at 59 (1977), reprinted in Senate
Subcomm. On Labor, Comm. On Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 1337 (1978) (emphasis added). Moreover,
the first three sentences of section 111 already provide compensation to miners
actually idled by a withdrawal order.[6]
Providing (potentially quite extensive) idlement compensation through the
fourth sentence is inconsistent with the structure of section 111.

The
third and final consideration under the fourth sentence is the period of
compensation. In relevant part, the sentence provides compensation “. . . for
the period beginning when such order was issued and ending when such order is
complied with, vacated, or terminated . . . .”

Amendment
5 is the relevant “order” for calculating compensation. United Steelworkers
asserts that the commencement date for compensation should be the date of the
original order, November 16. We have held, however, that Hecla violated
Amendment 5 issued on December 6. Consequently, the compensation period is
properly considered to have begun when the amendment was issued on December 6,
2011.[7]
While the date of compliance is less obvious, we confirm the Judge’s
determination that the compensation period ended at approximately 9:00 p.m. on
December 14, 2011.  

Compliance
takes different forms in different contexts: for example, an operator may have
to complete abatement, fulfill an affirmative requirement, and/or withdraw
miners. The context here is a failure to comply, resulting in miners working
when they should have been withdrawn. The simplest way to resolve a failure to
comply is to resume compliance. Following this logic, the Judge reasoned that Hecla
complied (or rather, ended its state of non-compliance) at 9:00 p.m. on December
14, 2011, when all miners were withdrawn from the affected area and when
underground activity was prohibited by section 103(j) Order No. 8605622 so that
the requirement to monitor stress gauges fell away.

United
Steelworkers contends that the Judge’s finding as to the date of compliance was
precluded by his holding in the contest proceeding, and is not supported by the
record. We find that both arguments rely on an assumption that Amendment 5 is
not the relevant “order” for compensation purposes. Accordingly, we reject
them.

United
Steelworkers claims that in the contest matter the Judge effectively affirmed
MSHA’s determination that Order No. 8605614 was not fully abated until June 12,
2013, and therefore cannot conclude in the compensation matter that compliance
occurred on December 14, 2011.[8]
The issue in the contest proceeding was whether the Secretary acted in an
arbitrary or capricious manner by maintaining Order No. 8605614 in its entirety
after December 14, 2011. The Judge did not (nor did he have any reason to)
address compliance with Amendment 5 specifically. He was free to do so in the
compensation proceeding. See Ranger Fuel Corp.,   10 FMSHRC at 620-21
(finding that a Judge could address causal nexus arguments in a compensation
claim related to an uncontested citation, because the Judge would not have
addressed the issue in an enforcement proceeding); cf. Faith Coal Co.,
19 FMSHRC 1357, 1365 (Aug. 1997) (noting that res judicata is
inapplicable where the claims involved are not identical). A finding that Order
No. 8605614 was not terminated until June 12, 2013 does not preclude a
finding that the relevant amendment was complied with, for compensation
purposes, on December 14, 2011.

United
Steelworkers argues that, as a factual matter, compliance was not achieved on
December 14, 2011, because Hecla continued to work to abate conditions
associated with Order No. 8605614 after that date. It is undisputed that all
steps necessary for full compliance for the order as a whole was not
fully achieved by December 14, 2011. However, it is also clear that the violation
relevant to this compensation proceeding – the requirement to monitor stress
gauges in Amendment 5 – fell away on December 14, 2011, when Order No. 8605622
prohibited all underground activity. As discussed above, the date of compliance
is not based solely on the impossibility of continuing to monitor stress gauges,
but also on the withdrawal of the 19 miners.

IV.

Conclusion

The
fourth sentence of section 111 is intended to provide double compensation to
miners who actually worked when, if not for the violation, failure or refusal
to comply which triggered the compensation claim, they would otherwise have
been withdrawn or prevented from entering the affected area. Consistent with
this purpose, the Judge properly focused on Amendment 5 as the “order” with the
appropriate nexus to the compensation claim, and limited compensation to those
miners who, during the period between issuance of, and compliance with, the
amendment, worked when they would otherwise have been withdrawn due to
hazardous conditions caused by Hecla’s failure to monitor the stress gauges. Accordingly,
we affirm the Judge’s decision.

/s/ Mary Lu
Jordan

Mary Lu Jordan,
Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1]
The fourth sentence of section 111 states:

Whenever an
operator violates or fails or refuses to comply with any order issued under
section 103, section 104, or section 107 of this Act, all miners employed at
the affected mine who would have been withdrawn from, or prevented from
entering, such mine or area thereof as a result of such order shall be entitled
to full compensation by the operator at their regular rates of pay, in addition
to pay received for work performed after such order was issued, for the period
beginning when such order was issued and ending when such order is complied
with, vacated, or terminated.

30 U.S.C. § 821.

[2] Section 103(k)
states in relevant part that, “[i]n the event of any accident occurring in a
coal or other mine, an authorized representative of the Secretary, when
present, may issue such orders as he deems appropriate to insure the safety of
any person in the . . . mine.” 30 U.S.C.   § 813(k).

[3] A “rock burst”
is “[a] sudden and often violent breaking of a mass of rock from the walls of a
tunnel, mine, or deep quarry, caused by failure of highly stressed rock and the
rapid or instantaneous release of accumulated strain energy. It may result in
closure of a mine opening, or projection of broken rock into it, accompanied by
ground tremors, rockfalls, and air concussions.” Am. Geological Institute, Dictionary
of Mining, Mineral and Related Terms, 464 (2nd ed. 1997).

[4] A “drift” is
“[a]n entry, generally on the slope of a hill, usually driven horizontally into
a coal seam.” Id. at 169.

[5] The failure to
comply and its effect are documented in Citation No. 8565565. We note that
while the relevant failure to comply was contained in a citation in this
instance, a formal MSHA enforcement action is not necessary to establish a
fourth sentence compensation claim.  It is the violation, failure or refusal to
comply with an element of a section 103, 104 or 107 order which gives rise to
the claim. That triggering event may be established through an MSHA enforcement
action or by other evidence of the operator’s failure or refusal to comply with
the order.

[6]
Hecla has represented to the Commission that miners actually idled by Order No.
8605614 were entitled to, and received, the proper shift compensation.

[7] Obviously, if
Hecla had violated some other aspect of the relevant order, the commencement
date could be different. For example, if Hecla failed to withdraw miners
working in dangerous conditions and such failure was viewed as non-compliance
with Order No. 8605614’s requirement to ensure safety by withdrawing miners,
the beginning date for compensation could be November 16, 2011. However, the
parties agree that the “failure to comply” which triggered this claim was the
failure to take stress gauge readings as required by the Amendment 5, not a
failure to ensure miner safety as required by the order.

[8] United
Steelworkers also argues that the Judge was precluded from adopting Hecla’s
argument that Order No. 8605622 superseded, mooted or terminated the earlier
order, because the Judge had already rejected those defenses in the contest
matter. However, the Judge specifically noted that the defenses were
non-determinative in the contest matter, and might be relevant to the
compensation claim. 36 FMSHRC at 2753 n.8, 2754 n.10.