Consolidation Coal Company

Plain-English summary

Local Union 1261 sought compensation for underground miners at Consolidation Coal Company's Emery Mine after the company withdrew them because of rising gas levels. MSHA issued a section 103(k) withdrawal order the next morning, and the miners were not working when the order issued. Judge John J. Morris held that the miners were officially idled by the MSHA order even though the company had first withdrawn them voluntarily. He ruled that the miners were entitled to compensation under section 111 of the Mine Act.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(k) and 821
• Outcome: The miners were held entitled to compensation under section 111 after the section 103(k) order.
• Key point: An MSHA withdrawal order can officially close a mine for compensation purposes even when the operator had already removed miners from the affected area.

Full text (FMSHRC public release)

CCASE:
LOCAL UNION 1261 V. CONSOLIDATION COAL
DDATE:
19871022
TTEXT:

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

LOCAL UNION 1261, DISTRICT 22, COMPENSATION PROCEEDING
UNITED MINE WORKERS OF
AMERICA, Docket No. WEST 86-199-C
COMPLAINANT
Emery Mine
v.

CONSOLIDATION COAL COMPANY,
RESPONDENT

                               DECISION

Before: Judge Morris

 This is a proceeding for compensation under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (the Act).

 The parties waived their right to a hearing and submitted

the case for a decision on stipulated facts. Briefs were further
submitted by the parties in support of their respective
positions.

                                Issue

 The issue is whether the miners are entitled to compensation

under Section 111 of the Act when they had been withdrawn by the
operator before MSHA issued an order under 103(k) of the Act.
Applicable Statute

    Section 111 of the Act provides as follows:

"ENTITLEMENT OF MINERS"

         "Sec. 111. 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. 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.

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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. 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. The Commission shall have authority to
order compensation due under this section upon the filing of a
complaint by a miner or his representative and after opportunity
for hearing subject to section 554 of title 5, United States
Code.

                           Stipulated Facts

    The parties stipulated as follows:

 1. The Federal Mine Safety and Health Review Commission has

jurisdiction over this matter;

 2. The relevant members of Local Union 1261 are underground

coal miners who are employed at Consolidation Coal Company's
(Consol) underground Emery Mine. The UMWA is the authorized
representative of such miners for purposes of this proceeding;

 3. The Emery Mine is a mine whose operations and products

affect interstate commerce;

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4. On April 16, 1986 at 7:00 p.m., Consol removed its employees
from the Emery Mine to insure their safety because of rising gas
levels behind the North seals. Consol informed the afternoon
shift employees that the mine was idled until further notice
because of the rising gas levels. Consol's office manager and
foremen called the miners who were scheduled on the next two
shifts (graveyard and daylight) and told them "the mine is idle
until further notice." All underground miners who worked on that
date were paid for the time worked. The day shift employees on
April 16, 1986, worked a full shift and the afternoon shift
employees on that date worked four and one-half (4 1/2) hours;

 5. Concurrent with Consol's management's decision to remove

its employees from the mine, Consol notified MSHA and the UMWA of
that action;

 6. MSHA personnel arrived at the mine on the morning of

April 17, 1986, and conducted an investigation which included a
review of the air samples taken by Consol. MSHA Inspector Donald
B. Hanna issued an order under 103(k) of the Act at 7:14 a.m.
on April 17, 1986;

 7. The   103(k) order states "Based on the results of air

samples taken by the Company . . . this mine has experienced a
possible fire, therefore, all persons has (sic) been removed from
the mine by Company order to insure their safety and no person
shall enter inby the mine portals without modification of this
order, after consultation with appropriate persons selected from
Company officials, State officials, the miners representative and
other persons";

 8. At the time the   103(k) order was issued, no Local Union

1261 underground miners were working. After the 103(k) order
was issued, no miners could enter the mine nor could mining
activities resume until MSHA modified the order;

 9. The   103(k) order never alleged that Consol had

committed any violation of a mandatory standard and the order was
not issued under 104 or 107 of the Act;

 10. Consol did not pay any Local Union 1261 underground

miners for April 17, 1986;

 11. On April 20, 1986, at 2:36 p.m. the   103(k) order was

modified to allow mining to resume, and on May 16, 1986, at 2:00
p.m. the order was terminated.

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Discussion

 The miners involved here seek compensation under Section 111

of the Act. The pivitol stipulated facts establish that MSHA
issued a 103(k) order on April 17, 1987. The operator contends
the miners are not entitled to compensation on that date because
the company had already voluntarily withdrawn them from the
affected area.

 Previous Commission decisions construing this section are

not factually controlling since they involve the last paragraph
of the section. Local Union 1609, District 2, United Mine Workers
of America v. Greenwich Collieries, (Division of Pennsylvania
Mines Corporation, 8 FMSHRC 1302 (1986); Local Union 2274,
District 28, United Mine Workers of America v. Clinchfield Coal
Company, 8 FMSHRC 1310 (1986); Local Union 1889, District 17,
United Mine Workers v. Westmoreland Coal Company, 8 FMSHRC 1317
(1986).

 However, I am persuaded by the reasoning in Mine Workers,

District 31 v. Clinchfield Coal Company, 1 MSHC 1010 (1971),
(Interior Board of Mine Operations Appeals); Mine Workers Local
1993 v. Consolidation Coal Company, 1 MSHC 1668 (1978)
(Broderick, J.); and Mine Workers Local 2244 v. Consolidation
Coal Company, 1 MSHC 1674 (Fauver, J.). In sum, these cases hold
that an MSHA withdrawal order is more extensive in scope than a
voluntary withdrawal by the operator. Specifically, an MSHA order
prohibits reentry until the danger no longer exists. Further,
regardless of the sequence of events or the method by which the
miners were originally withdrawn, a mine, or section thereof, is
officially closed upon the issuance of an order under the Act.
The miners were thus officially idled by the 103(k) order.

 It follows, accordingly, that the miners are entitled to

compensation under the Act.

                          John J. Morris
                          Administrative Law Judge