Utah Power & Light Company, Mining Division (ALJ decision, January 29, 1987)

Plain-English summary

The United Mine Workers filed a compensation proceeding for Local Union 1769 miners affected by a withdrawal order at Utah Power & Light's Deer Creek Mine. The parties engaged in discovery, sought stays and continuances, and negotiated a settlement under which 147 miners were paid. The union later asserted that 14 additional miners should receive compensation and opposed dismissal, while Utah Power & Light maintained that it had complied with the settlement. This release records the procedural history and supporting compensation exhibits; it does not record a dismissal of the proceeding.

Decision snapshot

• Governing provision: 30 U.S.C. § 821
• Outcome: The release records the compensation proceeding's procedural history, settlement, and dispute over additional miners, without a dismissal ruling.
• Key point: The settlement paid 147 listed miners, but the union continued to dispute whether 14 additional miners were covered.

Full text (FMSHRC public release)

CCASE:
LOCAL UNION 1769, DIST. 22, UMWA V. UTAH POWER & LIGHT DDATE: 19870129 TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.) Office of Administrative Law Judges

LOCAL UNION 1769, DISTRICT 22,
COMPENSATION PROCEEDING
UNITED MINE WORKERS OF
AMERICA (UMWA),
Docket No. WEST 87-86-C
COMPLAINANT
Deer Creek Mine v.

UTAH POWER & LIGHT COMPANY,
MINING DIVISION,
RESPONDENT

Procedural History

The UMWA filed this case on behalf of Local Union 1769 on January 29, 1987.

A review of the history of these extended proceedings is necessary.

This case was filed January 29, 1987.

On February 12, 1987 the UMWA filed interrogatories directed to respondent.

On February 27, 1987, Utah Power and Light (UP&L) Company, respondent filed it answer herein.

On March 5, 1987 the case was assigned to the presiding judge.

On March 13, 1987 the case was scheduled for a hearing in Denver, Colorado for April 21, 1987.

On March 25, 1987 UP&L filed answers to the UMWA interrogatories.

On April 6, 1987 UMWA's second set of interrogatories were filed.

On April 15, 1987 the parties filed a joint motion for a continuance until such time as the judge ruled on two motions in limine (not then filed).

On April 16, 1987 the hearing set for April 21, 1987 was cancelled and the hearing was rescheduled for August 11, 1987.

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On May 4, 1987 UP&L filed its response to the UMWA's second set of interrogatories.

On June 18, 1987 UMWA requested the case be stayed. In support of the motion UMWA states that the issue controlling in this case was pending before the Commission in Local Union 2333 v. Ranger Fuel Corporation, Docket No. WEVA 86-439-C.

On July 20, 1987 the hearing previously scheduled for August 11, 1987 was cancelled and the case was stayed pending the issuance of the Commission decision.

On May 13, 1988, the Commission issued its decision in Ranger Fuel Corporation.

On May 25, 1988 the presiding judge forwarded a copy of the Commission decision to the parties and granted them 10 days to state whether the pending case could be disposed of without a hearing.

The parties advised the judge they needed additional time; they were granted an additional 10 days (Order, June 9, 1988).

On June 14, 1988 the parties sought an indefinite stay until the parties reach an agreement regarding entitlement.

On June 17, 1988 the judge denied the request for an indefinite stay and directed the parties to advise the judge of a convenient location for the hearing.

On June 28, 1988 UP&L requested a hearing in Price, Utah.

On July 29, 1988 UP&L moved for a summary decision. On the same date the judge granted UMWA 15 days to reply to UP&L's motion.

On August 5, 1988 the UMWA responded to UP&L's motion.

On August 22, 1988 UP&L filed its reply.

On September 20, 1988 the parties moved for a continuance (from October 13, 1988 to October 27, 1988).

On October 3, 1988 complainant moved for leave to file a motion for summary decision.

On October 4, 1988 the judge denied the UMWA's motion for leave to file for a summary decision.

On October 5, 1988 the judge rescheduled the location of the hearing on December 15, 1988 from Denver, Colorado to Salt Lake City, Utah.

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On November 29, 1988 the parties requested that the hearing of December 15, 1988 be rescheduled "to permit the parties to negotiate over a specific settlement proposal currently under consideration" (UP&L's letter of November 29, 1988).

On December 6, 1988, the judge rescheduled the hearing date to March 1, 1989.

On December 8, 1988 the hearing of March 1, 1989 was cancelled as the parties had reached an "amicable settlement". Further, they were granted 15 days to file their proposed settlement agreement.

On December 12, 1988 UP&L forwarded a copy of the proposed settlement agreement. Under the agreement once UMWA received notice that the miners have been paid the UMWA would move to withdraw its complaint of discrimination.

On February 6, 1989 the judge ordered the UMWA to state whether it had received notice in accordance with the settlement agreement.

On February 23, 1989 UP&L moved to dismiss the complaint filed herein.

In support of its motion UP&L states it fully complied with the terms of the settlement agreement and paid the miners.

For its part the UMWA alleges that certain payroll records supplied by UP&L were incomplete. UP&L disagrees. Specifically, 147 miners have been paid but UMWA now asserts that an additional 14 miners should be paid.

In its response filed March 10, 1989 to UP&L's motion to dismiss the UMWA requests the Commission conduct an evidentiary hearing to determine why UP&L failed during discovery to disclose the names of miners working or scheduled to work during the idled period.

On May 12, 1989 the presiding judge denied UP&L's motion to dismiss the complaint and scheduled the case for a hearing on July 11, 1989 in Price, Utah. The judge's order further required the parties to file certain pretrial information.

Prior to the hearing UP&L filed its motion for reconsideration and clarification of the judge's order of May 12, 1989. UMWA, in its motion also requested a clarification of the judge's order.

On June 13, 1989 UMWA filed a response to the UP&L motion of May 12, 1989.

On June 13, 1989 in order that he might have sufficient time to consider the pending issues the presiding judge cancelled the hearing of July 11, 1989.

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September 28, 1988

VIA HAND DELIVERY

John T. Scott, III, Esquire
Crowell & Moring
1001 Pennsylvania Avenue, NW
Washington, DC 20004-2505

Re: Local Union 1769 v. Utah Power & Light Dear John:

I am currently attempting to gather the names of miners who are entitled to compensation in the above-captioned section 111 case. Attached is a list of the names of miners employed at the Deer Creek Mine in November, 1986, and their daily rate of pay. I cannot determine from the information obtained from you through discovery what shift each miner was scheduled to work. It would be helpful if you could provide this information to me as soon as possible in order to calculate the amount of entitlement for each miner. Once I receive this information I will send you the Union's complete list of each individual entitled to compensation and the amount due.

Sincerely,

Joyce A. Hanula

Attachment

• Exhibits D

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October 6, 1988

Mr. Robert Jennings
UMWA Health & Safety Representative
P.O. Box 783
Price, UT 84501

Re: Local Union 1769 v. UP&L

Dear Bob:

Attached is a list of the names of the miners and their hourly rate of pay who are entitled to compensation in the captioned case. Please arrange to have someone from the Local review the list for accuracy. A hearing has been scheduled on December 15, 1988, in Salt Lake City, Utah.

The 107(a) Order issued on November 3, 1986, which we are relying on in this case, idled the 3rd South belt entry from #20 crosscut including crosscuts and adjacent 1st Right entry from #34 to 3rd West number 1 drive. As you know, in our Complaint we asked for compensation for the entire mine. Yesterday, I spoke to UP&L's attorney who suggested that UP&L may offer to settle the case by compensating the miners who worked on the 3rd South belt entry and adjacent areas as described in the Order. This is not an offer from UP&L -- it is only a suggestion by their attorney. You should discuss this "possibility" with the Local and let me know what they think. In the meantime, let me know the names of the miners who worked on the 3rd South belt entry and adjacent areas on November 3, 1986. Hopefully all their names are included on the attached list.

If you have questions, call.

Very truly yours,

Joyce A. Hanula

Paralegal
Attachment

• Exhibit F

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LOCAL UNION 1769, DISTRICT 22, UMWA v. UTAH POWER & LIGHT CO.,
DOCKET NO. WEST 87-86-C

Employee
Daily Rate Days Idled Amount Due

Russell Jensen 123.32 5 616.60 Reid Leamaster 120.50 4 482.00 Earl Callum 122.90 4 491.60
Bryce Brashear 122.90 2 1/2 307.25
Glen Nelson 123.70 4 494.80 Dewitt Cotner 106.99 4 427.96 Harold R. Hansen 107.45 1 107.45 Vernon Jensen 107.45 2 214.90 Gary Motte 114.74 4 344.22 B. Pat Allred 115.58 3 346.74 Randy Thayn 111.38 3 334.14 Merland Jensen 120.08 4 480.32 Larry Smith 107.45 2 214.90 Marvin Thayn 109.21 2 218.42 Kent Oviatt 112.90 3 338.70 Willas Cook 114.74 3 344.22 Thomas Rhodes 123.70 4 494.80

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P. Reeve Cook 120.08 0 0 Gerald Powell 104.81 4 419.24 Phillip Heaps 123.32 4 1/2 554.94 Dennis Spensko 114.78 3 344.34 Scott Mathis 111.38 3 334.14 Melvin Hale 123.32 3 369.96 Delmar Nilsen 123.32 3 369.96 Kirk Hansen 114.74 2 1/2 286.85 Melvin Johnson 109.21 4 436.84 Kevin Wilson 120.08 2 240.16 Gregory Powell 123.32 1 123.32 Parly C. Jones 120.92 4 483.68 William Heaps 120.92 1 120.92
Jack Jones 123.32 4 493.28
Laroy Erickson 120.92 1 120.92 Kenneth Gunter 123.32 3 369.96 George Baker 114.78 1 114.78 Sheron Housekeeper 112.38 4 1/2 505.71

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William K. Farrer 123.32 4 493.28 Robert Maki 123.32 4 1/2 554.94 Dale Christensen 117.68 1 117.68 David Johnson 120.88 0 0 Larry Brown 123.32 3 369.96 James Gunter 120.92 2 1/2 302.30 Thomas Holdaway 123.32 3 369.96 Sheldon Oviatt 120.92 3 362.76 Michael Atwood 120.92 3 362.76 Dennis Campbell 124.12 2 248.24 Don Johnson 124.12 4 496.48 Charles Westbrook 120.88 0 0 Stewart Foster 124.12 3 372.36 Patrick Sampien 120.92 4 483.68 Curtis Taylor 123.32 4 493.28 Freddy Walters 120.92 4 483.68 Michael Mortensen 117.68 0 0 Monte Tucker 117.68 0 0 William Leverton 117.68 0 0 Duron Hunter, Jr. 120.88 0 0 Victor Zavala 120.92 3 362.64 Lawrence Devereaux 124.12 2 248.24 Allen Hyatt 120.92 4 483.68 Paul Larsen 124.12 4 496.48

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John Ciares 114.78 4 459.12 Lloyd Huntington 123.32 3 369.96 James Pendelton 120.92 4 483.68 Michael Juggert 120.88 0 0 Steven Rowley 120.92 3 362.76 Bobby Emery 124.12 2 248.24 Brad Timothy 124.12 4 1/2 558.54 Daniel Black 120.92 4 483.68 Daniel Bittick 114.74 3 344.22 Ron Prettyman 124.12 4 496.48 Jerry Shepherd 123.32 3 369.96 Kenneth Kay 106.99 3 320.97 Barrett Lemmon 124.12 0 0 Kelly Leroy 120.92 1 120.92 Ted Larsen 117.14 3 351.42 Randolph Winder 114.78 2 229.56
James Cave 117.68 3 470.72
Mark Winn 115.58 4 462.30
Brent Pierce 114.74 4 458.96 Michael Shannon 114.74 4 458.96
Thomas Kay 114.74 1 114.74
Russell Labrum 109.63 1 109.63 Tommy Dixon 117.68 4 470.72 Gary Stephenson 114.78 0 0

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Ferrill Wayman 114.78 0 0
Kevin Tucker 120.88 0 0
Ivan Anderson 111.38 1 111.38 Gary Anderson 124.12 2 248.24 Jack Batt 117.68 4 470.72 Robert Llewelyn 117.68 4 470.72 J. Mower 123.32 4 493.28 Bob Olson 117.68 4 470.72 Joe Collard 117.14 4 468.56 Lennie Gammon 124.12 4 496.48 James G. Gordon 111.38 1 111.38 Scott Johnson 114.74 2 229.47 Allen Wiswell 120.88 0 0 Eugene Griffin 112.38 2 224.76 Brent Bailey 120.08 3 360.24 Jay Oviatt 117.14 3 351.42 Glade Booth 114.78 0 0 Billy Dase 112.38 1 1/2 168.57 Kenneth Wilson 117.68 2 235.36 Indalesio Frutos 123.32 2 246.64 Edward Barnett 112.38 2 224.76 Floyd Anderson 117.68 4 470.72 John Blackham 120.92 4 483.68 Lamar Dyches 117.68 3 353.04

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Wallace Frandsen 120.92 2 1/2 302.30 Stan Densley 112.38 1 112.38 Tom Gonzales 112.38 0 0 Gerald Zabriskie 120.92 3 1/2 423.22 Robert Jensen 112.38 4 449.52 Thomas Memmott 117.68 4 470.72 Richard Richart 112.38 0 0 Jeffrey Nielson 117.68 2 235.36 Max Whiting 112.38 0 0 Don Allred 114.74 1 114.74 Max Nichols 112.38 0 0 Fred Sanchez 117.68 4 470.72 Richard Rigby 120.88 4 483.52 David Peterson 112.38 1 112.38 Dennis Peterson 117.68 0 0 Elmer Jones 124.12 4 496.48 Larry Turner 112.38 2 224.76 Boyd Johnson 120.88 2 241.76 Jim Malmgren 120.88 2 241.76 Darrel Butler 124.12 4 496.48 Karl Bessey 123.32 1 123.32 Gary Butler 124.12 1 124.12 David Monk 112.38 0 0 Samuel R. Dye 124.12 2 248.24

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Gary W. Olsen 120.88 1 120.88 Sheran Dyches 112.38 3 1/2 393.32 Gary Garlick 120.88 0 0 Kevin Wells 124.12 4 496.48 Kirk Christensen 120.92 2 241.84 Don R. Jensen 120.92 2 241.84 Harold Sparks 114.78 3 344.34 Joel Erickson 120.92 4 1/2 544.14 Leslie Hammond 112.38 2 224.75 Guy Gordon Young 120.08 3 360.24 David Mackay 120.88 2 241.76 Brady Miller 120.92 4 1/2 544.14 Ronald Nunley 123.32 2 1/2 308.30 Jerald Schade 109.21 4 1/2 491.44 Don Shelley 124.12 0 0 Arnold Moosman 124.12 2 248.24 Calvin Ross 124.12 2 248.24 Kendall Bartholomew 120.92 4 1/2 544.14 Evan Johnson 120.92 0 0 David Anderson 120.92 4 1/2 544.14
Kim Cooley 120.92 4 483.68
Jimmy Nay 124.12 3 372.36
Bart Norton 124.12 4 496.48 Charles Olsen 124.12 4 496.48

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Benjamin Dicaro 120.92 1 1/2 181.38 Jeffrey Anderson 124.12 4 496.48 Gary Birch 109.21 1 109.21 Linda Jensen 120.92 4 1/2 544.14 Robert Davis 120.92 3 362.76 Randy Mellor 123.32 0 0 Keldon Mann 123.32 4 1/2 554.94
Gary Boyd 123.70 4 494.82
Dennis Seely 120.92 4 483.68 Jeffrey Farmer 124.12 2 248.24
Kelly Duke 123.32 2 246.64
Robert Farrer 123.32 2 246.64 Ralph Keele 124.12 4 496.48
T. Curtis 124.12 2 248.24
Dee Laws 123.32 2 246.64
James Holt 120.92 1 120.92
Rudy Metelko 120.92 1 120.92

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November 9, 1988

Mr. Robert Jennings
UMWA Health & Safety Representative
UMWA District 22 Office
525 East 100 South
Price, UT 84501

Re: Local Union 1769 v. UP&L

Dear Bob:

Enclosed is a photocopy of the list of the names of miners, his/her daily rate of pay, number of days idled and the amount of compensation due in the above-captioned section 111 compensation case. I gathered this information from the payroll records obtained from UP&L (see enclosed photocopy of payroll records). We are seeking compensation for the following:

Each miner who worked the 8:00 a.m. to 4:00 p.m. shift on November 3, 1986 -- 4 hours of compensation.

Each miner who was scheduled to work the 4:00 p.m. to midnight shift on November 3, 1986 -- 8 hours of compensation.

Each miner who was scheduled to work the midnight to 8:00 a.m.; 8:00 a.m. to 4:00 p.m. and 4:00 p.m. to midnight shifts on November 4, 5, 6 and 7, 1986 -- 8 hours of compensation.

A hearing in this matter is scheduled on December 15, 1988, in Salt Lake City, Utah. It is imperative that I am contacted by the Local or you by November 21, Exhibit G

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1988, regarding any changes, additions, etc. on the list. If I am not contacted by you or the Local by November 21, 1988, I will assume the list is accurate and forward a copy to the company.
If you have any questions concerning the list please contact me at (202) 842-7345.
Sincerely,
Joyce A. Hanula
Paralegal
Enclosures