Local Union 8454, District 17, United Mine Workers of America v. Pine Tree Coal Company and Buffalo Mining Company (ALJ decision, February 15, 1985)

Plain-English summary

Miners at Pine Tree Coal Company's No. 5 Mine were idled when MSHA ordered a withdrawal after mining reached an active gas well missing from the mine map. The United Mine Workers sought compensation for their lost work time from Pine Tree and Buffalo Mining Company. Judge James A. Broderick held that Pine Tree owed compensation as the operating employer, regardless of fault. He also held Buffalo jointly liable because it owned or leased the mine, supervised mapping and projections, and directed the mining that reached the well. The judge ordered the two companies to pay 16 miners a total of $7,958.79 plus interest. He left any dispute between the companies under their indemnity agreement undecided; this compensation decision assesses no civil penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 821, compensation for miners idled by withdrawal orders; 30 U.S.C. § 817(a), imminent-danger orders.
• Outcome: Pine Tree and Buffalo held jointly and severally liable for $7,958.79 in compensation to 16 miners, plus interest.
• Key point: Both the operating employer and the owner that directed the work could owe statutory compensation for a withdrawal-related shutdown.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

LOCAL UNION 8454, DISTRICT 17 : COMPENSATION PROCEEDING UNITED MINE WORKERS OF :
AMERICA (UMWA), : Docket No. WEVA 84-65-C
Complainants :
v. : No. 5 Mine
PINE TREE COAL COMPANY,
:
Respondent :
and
:
:
BUFFALO MINING COMPANY, an :
affiliate of THE PITTSTON :
COMPANY, a corporation :
Respondent :

DECISION
Appearances: Joyce A. Hanula, Legal Assistant, UMWA, Washington, D.C. for Complainants;
Carter Elkins, Esq., and W. N. Reynolds, Esq., Campbell, Woods, Bagley, Emerson, McNeer and Herndon, Huntington, West Virginia, for
Respondent Pine Tree;
Donald R. Johnson, Esq., Lebanon, Virginia, for Respondent Buffalo.
Before: Judge’ Broderick

STATEMEMT OF THE CASE

The United Mine Workers Union Local 8454 (UMWA), repre- senting the miners employed at the Pine Tree Coal Company's (Pine Tree) No. 5 Mine, brought this action against Pine Tree, claiming compensation for the miners who were idled as a result of an order of withdrawal issued by MSHA on October 4, 1983. The withdrawal order was issued under section 107(a) of-the Act, alleging an imminent danger, because an active gas well was mined into in the subject mine. On March 6, 1984, Pine Tree filed a "Third-Party Complaint" against Buffalo Mining Company (Buffalo) alleging (1) that the condition resulting in the withdrawal order was the result of Buffalo's failure to provide proper engineering

236 services to Pine Tree, and (2) that Buffalo had agreed to indemnify Pine Tree for claims asserted against the latter with respect to matters related to the October 3, 1983, accident. Buffalo filed a Motion to Dismiss the Third Party Complaint. Complainants filed an amended Complainant naming Buffalo as an additional Respondent. All parties filed briefs and I denied the motion by order issued May 7, 1984.
Pursuant to notice, the case was called for hearing in Charleston, West Virginia, on December 20, 1984. Complainants did not call any witnesses. Gale B. Stepp testified on behalf of Pine Tree and Lenox Profitt testified on behalf of Buffalo. All parties have filed posthearing briefs. Based on the entire record and considering the contentions of the parties, I make
the following decision.
_

FINDINGS OF FACT
1. The following miners were employed by Pine Tree at its No. 5 Mine in Logan County, West Virginia, on October 4, 1983. Each was idled as a result of the withdrawal order issued on that date. The rate of pay of each and the number of hours idled are listed beside each name:
Miner
Hourly Rate Hours Idled
1. Mitchell Hensley 13.565 36
2. Michael Hensley 13.565 36
3. Bob Bryant 13.093 36
4. Woodrow Chambers 13.565 36
5. Steve Meade 13.565 36
6. Calvin Tomblin 13.565 36
7. Clifton Tomblin 13.565 36
8. Tim Adams 13.093 40

9.       Billy Tomblin               12.57          40
    10.   Thomas Hensley              13.865         40
    11.   James Smith                 13.460         40
    12.   Herbert Stramon             13.865         40
    13.   David Meade                 13.460         40
    14.   Roger Adkins                12.87          40
    15.   Michael Bailey              12.97          32
    16.   Jim Gullett                 12.97          32

    2. Pine Tree operated the subject mine under a contract

with Buffalo. Buffalo had a lease to the mineral rights on the mine property. In the contract, Buffalo is described as the owner and Pine Tree the contractor. Pine Tree agreed to mine coal and deliver it to Buffalo's tipple. Pine Tree agreed to furnish labor, machinery, supplies, and equipment

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required in the performance of the contract. Buffalo reserved the right to furnish written plans and projections which Pine Tree agreed to follow. Title to the coal remained in Buffalo. Buffalo agreed to furnish "such engineering services as may in its judgment be required for contractor's guidance and to protect owner's interest in realty, in complying with the terms of this Contract. A reasonable charge will be made for such service, to be deducted from the proceeds due Contractor under this contract." Pine Tree was responsible for payment of its employees' wages and other benefits. Pine Tree agreed to comply with applicable State and Federal laws and regula- tions including those relating to health and safety. (Buffalo Exh. 1). The mine maps were furnished to Pine Tree by Buffalo. Pine Tree operated the mine with an MSHA ID number and a license from the State of West Virginia, both issued in the name of Pine Tree.
3. On October 3, 1983, at about 8:00 p.m., the mining
crew told Gail Stepp, Pine Tree's President, that it had hit something which appeared to be a gas well. Stepp called Lenox Profitt, the contract manager for Buffalo. Profitt consulted the Buffalo engineering department and all available maps but found no indication of any gas well. Profitt told Stepp that there was no gas well in the area, so mining con- tinued. The following morning, Stepp himself went in the mine and saw what appeared to be a gas well. He again called Profitt who told him it was probably just a casing someone had left. Profitt then discussed the matter with Buffalo's chief engineer and it was "quickly agreed that there had been a gas well in that area." (Tr. 60-61). Profitt called Stepp and told him to get his men out and shut down the mine.
4. The matter was reported to State and Federal
authorities and at 11:45 a.m., October 4, 1983, Federal Mine Inspector Oscar R. Nally Jr., issued an Order of Withdrawal covering the entire mine. The condition found was described in the Order as follows: "The certified mine map was not accurate in that an active gas well was mined into in the No. 2 entry 001 section. This well nor any other well was shown on the certified map . . . .” (Union Exh. 1).
5. The condition was abated by Pine Tree building a
concrete wall around the well. Buffalo delivered the necessary supplies and reimbursed Pine Tree for the wages paid the miners who did the abatement work. Buffalo also drew up the plan for sealing the well and directed and instructed Pine Tree how to do the work.

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6. On October 28, 1983, Buffalo signed an "Indemnity Agreement," whereby it agreed to indemnify and hold harmless Pine Tree "from and against all liability for claims, actions, demands, fines, penalties, citations and other actions which have been or which might be asserted . . . against Pine Tree
by state and/or federal agencies . . . with respect to
matters directly related to the . . . accident on October 3, 1983." (Union Exh. 2). STATUTORY PROVISIONS
Section 111 of the Act provides in part as follows:
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. 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.
Section 3(d) of the Act provides as follows: "'Operator'
means any owner, lessee, or other person who operates, con- trols, or supervises a coal or other mine or any independent contractor performing services or construction at such mine."

ISSUES
Is Pine Tree or is Buffalo or are both liable to pay compensation to the miners idled by the withdrawal order? CONCLUSIONS OF LAW ,’
1. Pine Tree is liable under section 111 to pay compen- sation to miners idled as a result of the order of withdrawal. Pine Tree operated the mine, employed and paid wages to the miners and was served with the withdrawal order. Pine Tree is liable even though the condition giving rise to the with- drawal order was the responsibility of Buffalo. Fault is not an element in determining liability under section 111.
2. Buffalo is liable, jointly and severally with Pine Tree, under section 111 to pay compensation to the miners idled as a result of the order of withdrawal. Buffalo was the "owner" or "lessee" of the mine. Buffalo supervised Pine Tree's activities, in particular with respect to pro- jections and mapping. The mining into the gas well which caused the withdrawal was specifically directed by Buffalo. Mine owners have been held liable for safety violations committed by independent contractors. Bituminous Coal Operators Association v. Secretary, 547 F.2d 240 (4th Cir. 1977) (under the 1969 Coal Act); Secretary v. Republic Steel Corporation, 1 FMSHRC 5 (1979) (1969 Coal Act). By analogy, the owner may be held strictly liable to pay compensation to miners idled by a withdrawal order, even though the owner is not the employer of the miners. In Secretary v. Phillips Uranium Corporation, 4 FMSHRC 549 (1982) (1977 Mine Act), the Commission said that the test to determine an owner's liability depends on "whether the Secretary's decision to proceed against an owner for the contractor's violation was made for reasons consistent with the purposes and policies of the 1977 Act." By analogy, the decision to proceed in a compensation matter against an owner may be upheld if, as is the case here, the conditions giving rise to the withdrawal were the responsibility of the owner. I conclude that Pine Tree and Buffalo are jointly and severally liable to pay the compensation hereafter awarded to the miners in this case.
3. The Commission is without authority to interpret the indemnity agreement referred to in Finding of Fact No. 6. I do not decide whether under that agreement Buffalo is liable over to Pine Tree for the compensation due the miners herein. ORDER Respondents are ORDERED to pay the following compensation under section 111 of the Act to the miners named below:
Mitchell Hensley
$ 488.34
Michael Hensley
488.34
Bob Bryant
471.35
Woodrow Chambers
488.34
Steve Meade
488.34
Calvin Tomblin
488.34
Clifton Tomblin
488.34
Tim Adams
523.72
Billy Tomblin
502.80
Thomas Hensley
554.60
James Smith
538.40
Herbert Stramon
554.60
David Meade
538.40
Roger Adkins
514.80
Michael Bailey
415.04
Jim Gullett
415.04
Respondents are FURTHER ORDERED to pay interest on the above compensation in accordance with the Commission- approved formula in Secretary/Bailey v. Arkansas-Carbona, 5 FMSHRC 2042 (1983). Interest shall be paid at the rate of 11 percent per annum (.03055 percent per day) from October 4, 1983 to June 30, 1984, and at the rate of 13 percent per annum (.0361 percent per day) from July 1, 1984 until paid. 1/

James A. Broderick
Administrative Law Judge

1/ Interest on compensation awards-was upheld by the Commission in Mine Workers Local 5869 v. Youngstown Mines Corp., 1 FMSHRC 990 (1979). This case was decided prior to the adoption of the Arkansas-Carbona formula for discrimina- tion awards. I believe the same formula should apply to compensation awards. Distribution: Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 900 15th Street, N.W., Washington, DC 20005 (Certified Mail) Carter Elkins, Esq., and W. Nicholas Reynolds, Esq., Campbell, Woods, Bagley, Emerson, McNeer and Herndon, 14th Floor Coal Exchange Building, P.O. Box 1835, Huntington, WV 25719 (Certified Mail) Mr. Donald R. Johnson, Assistant General Counsel, Pittston Coal Group, Buffalo Mining Company, P.O. Box 4000, Lebanon, VA 24266 (Certified Mail)

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