Monument Mining Corporation and Island Creek Coal Company

Plain-English summary

The United Mine Workers sought compensation under section 111 of the Mine Act for miners idled by a withdrawal order issued after blasting at Monument Mining's No. 1 Surface Mine exposed workers at an adjacent underground mine to danger. Monument was the independent contractor that controlled the blasting, while Island Creek Coal Company owned the mine. Judge George A. Koutras found no connection between Island Creek's conduct and the conditions that caused the withdrawal order. He held Monument responsible for the compensation and dismissed the complaint against Island Creek.

Decision snapshot

• Governing provisions: 30 U.S.C. § 821 and 30 U.S.C. § 814(d)(2)
• Outcome: Monument was ordered to pay the compensation claims, while the complaint against Island Creek was dismissed.
• Key point: In a section 111 compensation proceeding, the responsible contractor may be liable even when the mine owner had no control over the contractor's conduct that caused the withdrawal order.

Full text (FMSHRC public release)

CCASE:
LOCAL UNION 5817 (UMWA) v. MONUMENT
MINING & ISLAND CREEK COAL
DDATE:
19850927
TTEXT:

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

LOCAL UNION 5817, COMPENSATION PROCEEDING
DISTRICT 17,
UNITED MINE WORKERS OF Docket No. WEVA 85-21-C
AMERICA (UMWA),
COMPLAINANT No. 1 Surface Mine
v.

MONUMENT MINING CORPORATION,
AND
ISLAND CREEK COAL COMPANY,
RESPONDENTS

                         SUMMARY DECISION

Before: Judge Koutras

                      Statement of the Case

 This proceeding concerns a complaint filed by the UMWA,

Local 5817, District 17, against the respondents pursuant to
section 111 of the Federal Mine Safety and Health Act of 1977,
seeking compensation for its member miners employed at the No. 1
Surface Mine who were idled by a section 104(d)(2) withdrawal
order issued by MSHA Inspector Edward M. Toler at 5:15 p.m., on
August 1, 1984. The order stated as follows:

      Protection of underground workers were not provided for
      the employees of the Brandy Mining Inc. No. 1 mine
      where blasting was performed at the Monument Mining No.
      1 Surface mine exposing miners at the Brandy Mining
      Inc. No. 1 mine to falling rock and damage was done to
      mine property. 1 Drift canopy was destroyed and damage
      to the belt conveyor and miners were present outby of
      the underground area and one blast did occur.

 The complaint asserts that as a direct result of the order,

the miners scheduled to work from August 2 to August 3, 1984,
were idled on certain work shifts scheduled for those days, and
that they are entitled to compensation

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at their regular rate of pay, plus interest at the rate of 20
percent per annum, and attorneys fees incurred in obtaining the
claimed compensation.

 The complaint was initially filed against the respondent

Monument Mining Corporation. However, in view of Monument's
failure to respond to several orders which I issued, and its
failure to respond to the complainant's discovery requests, I
issued a show-cause order directing the parties to show cause why
Monument should not be held in default and a summary decision in
favor of complainant should not be issued.

 In response to my show-cause order, the complainant moved to

amend its complaint to name Island Creek Coal Company as a
respondent. Complainant asserted that at the time it filed its
complaint against Monument, it had no knowledge that Island Creek
was the owner of the No. 1 Mine. The motion was granted, and the
matter was docketed for a hearing in Charleston, West Virginia.
The hearing was subsequently cancelled after the parties advised
me that a hearing was not necessary and that the matter would be
submitted to me for decision by stipulations and supporting briefs.

                Applicable Statutory Provision

     * * * 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. * * *

                         Stipulations

 The joint stipulation of facts between the complainant and

the respondent Island Creek Coal Company is as follows:

     1. This proceeding is governed by the Federal Mine
     Safety and Health Act of 1977 (the Act) and the
     standards and regulations promulgated for the
     implementation thereof.

     2. The Administrative Law Judge has jurisdiction over
     this proceeding.

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3. Island Creek Coal Company (Island Creek) is an
operator within the meaning of section 3(d) of
the Act.

    4. The No. 1 Surface Mine, which is part of the Holden
    No. 29 Mine, is located in Holden, Logan County, West
    Virginia, and is owned by Island Creek.

    5. At all times relevant to this proceeding, Monument
    Mining Corporation (Monument) was an independent
    contractor hired by Island Creek, and was an operator
    within the meaning of section 3(d) of the Act.

    6. In accordance with the contract between Island Creek
    and Monument, Monument was responsible for mining an
    area of land known as the No. 1 Surface Mine. A copy of
    the contract is attached as Exhibit A.

    7. At 5:15 p.m., on August 1, 1984, MSHA Inspector
    Edward M. Toler issued Withdrawal Order No. 2438645
    pursuant to section 104(d)(2) of the Act to Monument,
    which related to the No. 1 Surface Mine. A copy of
    Order No. 2438645 is attached as Exhibit B.

    8. Order No. 2438645 prohibited work from being
    performed in the entire pit area of the No. 1 Surface
    Mine.

    9. The blasting which resulted in the issuance of Order
    No. 2438645 was performed and controlled by Monument.
    Island Creek exercised no control over the manner in
    which Monument conducted such blasting.

    10. As a direct result of Order No. 2438645 the miners
    at the No. 1 Surface Mine were idled from 6:45 a.m.,
    August 2, 1984 to 5:30 a.m., August 4, 1984.

    11. A list of the names of the idled miners, their
    rates of pay and amount of wages lost as a result of
    the withdrawal order is attached as Exhibit C.

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12. On or about October 15, 1984, Monument unilaterally
ceased performance under the contract with Island Creek.

     13. Upon information and belief, Monument is no longer
     in business.

     14. The miners at the No. 1 Surface Mine were members
     of Local Union 5817, District 17 and are represented by
     the United Mine Workers of America.

     15. Monument contested Order No. 2438645 pursuant to
     section 105(d) of the Act. The Notice of Contest was
     assigned Docket No. WEVA 84-374-R.

     16. On February 13, 1985, the Notice of Contest
     docketed WEVA 84-374-R was dismissed. See Order
     Dismissing Proceeding attached as Exhibit D.

     17. On March 21, 1985, Elm Coal Corporation began
     operating the No. 1 Surface Mine and continues to do
     so.

                            Issue

 Is Island Creek liable in whole or in part for payment of

compensation owed to employees of its independent contractor
Monument Mining under section 111 of the Act as a result of the
closure order issued to Monument Mining?

UMWA Arguments

 Citing Bituminuous Coal Operators Ass'n v. Secretary of the

Interior, 547 F.2d 240, (4th Cir.1977); Republic Steel v.
Interior Board of Mine Operations Appeals, 581 F.2d 868
(D.C.Cir.1978); Secretary of Labor v. Old Ben Coal Co., 1 FMSHRC
1480, aff'd, D.C.Cir. No. 79-2367 (Dec. 9, 1980), (unpublished);
Harman Mining Corp. v. FMSHRC & Secretary of Labor, 2 MSHC 1551
(4th Cir.1981); and Cyprus Industrial Minerals Co. v. FMSHRC &
Donovan, 2 MSHC 1554 (9th Cir.1981), the UMWA asserts that it is
well established that an owner-operator of a mine can be held
responsible, without fault, for a violation of the Act committed
by an independent contractor.

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Recognizing the fact that the cited cases arose in the context of
section 104 or 110 enforcement proceedings, the UMWA asserts that
the statutory language which allowed imposition of liability on
the owners in those cases, applies equally to cases brought under
section 111. Since section 111, like sections 104 and 110, speaks
in terms of the operator's liability to compensate idled miners,
and since Island Creek is the mine owner, the UMWA concludes that
it can be held liable for the compensation under section 111,
regardless of the fact that it did not create the danger
requiring the withdrawal of miners.

 In its supporting brief, the UMWA asserts that the rationale

of the Commission in Secretary of Labor v. Phillips Uranium
Corporation, 4 FMSHRC 549 (1982), and Secretary of Labor v.
Cathedral Bluffs Shale Oil Company, 6 FMSHRC 1871 (1984), in
obsolving the mine owner from liability for the violations of its
independent contractor is inapplicable in the instant case.

 Counsel argues that in the Phillips case, the Commission

felt that the Secretary's "owner's only" enforcement policy
undermined the Act in that it allowed large skilled contractors
who violated the Act to "proceed to the next jobsite with a clean
slate, resulting in a complete short-circuiting of the Act's
provisions for cumulative sanctions, should the contractors again
proceed to engage in unsafe practices." 4 FMSHRC at 553. In
contrast, the owner would have the violation entered into its
history, resulting in future large penalties. As a result of the
violations, the owner could also be subjected later to the
stringent section 104(d) and 104(a) sequence of violation
provisions.

 The UMWA points out that while the Commission never

retreated from its holding of owner liablity, it vacated the
citations and orders issued in the Phillips case because they
stemmed from a litigation decision resting solely on
considerations of the Secretary's administrative convenience,
rather than on a concern for the health and safety of miners.

 In the Cathedral Bluffs case, the UMWA points out that the

violation occurred subsequent to the Secretary's adoption of
independent contractor regulations, and that based on those
regulations, the Secretary cited both the mine owner and the
contractor. The Commission's vacation of the citation issued to
the mine owner was based on its finding that the record did not
support the Secretary's contention that the mine owner had
control over the cited condition or that the owner's miners were
exposed to the hazard.

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The UMWA concludes that it is clear under the Old Ben, Phillips,
and Cathedral Bluffs decisions, the Commission's review of the
Secretary's decision to prosecute a mine owner for a contractor's
violation will be made on the basis of whether or not the
Secretary's choice was made for reasons consistent with the
purposes and policies of the Act. The reasonableness of the
Secretary's action will depend on the degree of control retained
by the operator and whether the owner's miners are exposed to the
hazard.

 The UMWA points out that the instant case raises the issue

of whether miners idled by a withdrawal order issued to an
independent contractor should be required to demonstrate the
owner's control of the contractor or exposure to the hazard by
the owner's employees, before they can prevail in a section 111
proceeding against the mine owner. The UMWA concludes that they
should not.

 In support of its argument, the UMWA argues that unlike the

situations in Old Ben, Phillips, and Cathedral Bluffs,
compensation cases arising under section 111 of the Act do not
involve review of the Secretary's enforcement policy. For that
reason, the UMWA concludes, the policy issues that concerned the
Commission in those cases are simply not present in cases like
the instant one. The UMWA asserts that unlike the situations in
those cases, it did not proceed against Island Creek under an
owners-only policy. It points out that it first attempted to
proceed against the contractor (Monument Mining) who created the
condition requiring withdrawal, and that only after learning that
Monument had gone out of business and that the idled miners would
have no other way to enforce their statutory rights under section
111 did it seek to make Island Creek a respondent.

 The UMWA asserts that imposing liability of Island Creek in

this case will not increase Island Creek's history of violations,
thereby leading to increased future penalties. Nor will it
increase Island Creek's potential for liability under sections
104(d) or 104(e). Imposing liability on the owner in this case
does not mean the contractor will move onto the next job with a
"clean slate," since the violations have become part of
Monument's history of violations, and Monument will not be going
onto any other job since it has gone out of business. Further,
the UMWA asserts that the imposition of section 111 liability on
the owner does not mean Island Creek will be unfairly penalized
for a violation over which it had no control. It may, however,
motivate

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Island Creek to refrain from hiring "fly by night" contractors
who have little incentive to comply with mandatory standards.

 The UMWA argues that contrary to the situation in Old Ben,

Phillips, and Cathedral Bluffs, imposing liability on Island
Creek in this case would further the underlying purposes and
policies of the Act. In support of this conclusion, the UMWA
asserts that section 111 was not intended as a punitive measure
but was considered a way to equalize some of the financial
hardships that occurred when mines were idled by withdrawal
orders. "It does not insulate the miners from loss due to
withdrawal orders . . . [r]ather it distributes the loss
between miner and operator in the manner Congress apparently
decided was the most equitable means of achieving mine safety."
Rushton Mining Co. v. Morton, 520 F.2d 716, 721-22 (3d Cir.1975);
Legislative History of the Federal Mine Safety and Health Act of
1977, 95th Cong., 2d Sess., at 634-35 (Comm. Print 1978).

 The UMWA argues further that section 111 compensation is

seen as a way of lessening possible inhibitions miners might have
in reporting unsafe conditions, or that MSHA inspectors might
have in issuing withdrawal orders. A miner who felt his safety
complaint might lead to the loss of several days pay for himself
and his fellow workers might hesitate before bringing the problem
to the attention of the federal inspectors. Likewise those
inspectors might be reluctant to issue a withdrawal order if they
felt it would result in severe economic distress to the miners.

 The UMWA maintains that since section 111 compensation

furthers important purposes of the Act, denying miners the
opportunity to collect such compensation frustrates those
purposes. The UMWA asserts that refusing to impose liability on
the mine owner in this proceeding forecloses the possiblity of
the miners establishing a viable claim under section 111, and
that such a ruling would encourage mine owners to shield
themselves from liability by hiring independent contractors.
There would be no incentive to hire large stable contractors who
will be around for a long time, because the mine owner could
escape liablity even if the contractor goes out of business. The
possibility of no compensation will seriously deter the employees
of those contractors who might otherwise be inclined to report
unsafe conditions. The MSHA inspectors may find themselves
reluctant to issue a withdrawal order to a small, or newly-formed
company performing work as an independent contractor. These same
MSHA inspectors would also feel proscribed, under

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Commission decisions, from issuing the order to the mine owner,
unless there was evidence of owner control.

 The UMWA asserts that imposing section 111 liablity on the

mine owner for the contractor's violations is no more unfair or
inconsistent with the Act than the imposition of liability
against an operator under section 111 even though the withdrawal
order was later vacated as having been "issued in error."
Rushton, supra, 520 F.2d at 718. In Rushton, the operator argued
that such imposition of liability had "the effect of holding
Rushton liable without fault for the acts of the Government's
agent. . . ." The Court was unpersuaded by Rushton's argument,
however, and required compensation to be paid to the idled
miners. The UMWA observes that if an erroneously issued
withdrawal order can trigger an operator's liability under
section 111, then an order issued to the contractor should be
able to trigger liability on the part of the mine owner.

 The UMWA concludes that the Commission and the courts have

emphatically held that, as a matter of law, mine owners are
liable without fault for the violations that occur in their
mines. It further concludes that only where the decision to
impose liability on the owner would conflict with the underlying
policies and purposes of the Act, has the Commission refused to
apply this principle. Since Island Creek can show no such
conflict in this case, the UMWA believes that it is entitled to a
summary decision in its favor. In support of its argument, the
UMWA cites the case of Local Union 8454, UMWA v. Pine Tree Coal
Company and Buffalo Mining Company, 7 FMSHRC 236, 240, February
15, 1985, 3 MSHC 1747 (1985), Commission review denied on March
27, 1985. In that case Judge Broderick held the mine owner and
its independent contractor jointly and severally liable under
section 111 to pay compensation to the miners idled as a result
of an order of withdrawal. The UMWA states that because the
conditions giving rise to the withdrawal order were the
responsibility of the owner, Judge Broderick had no need to
analyze the issue of owner liability under section 111 when there
is no evidence of supervision or control by the owner.

Island Creek Arguments

 Island Creek states that under Article 7 of the mining

contract, Monument had full and complete control of the work to
be performed at the No. 1 Surface Mine and, except as was
necessary to protect Island Creek's property, or to insure
conformity to its mining plans and projections, Island Creek

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had no control over Monument's employees or mining operations.
Under Article 8 of the mining contract, Monument was clearly an
independent contractor and title to coal mined by Monument
remained with Island Creek. Monument was responsible under
Article 11 for compliance with all of the laws applicable to its
operations. Pursuant to Article 13, Monument was solely and
exclusively responsible for its employees in performance of the
mining contract. Compliance with the standards and regulations
issued by the Mine Safety and Health Administration was also the
responsibility of Monument under Article 13 of the mining contract.

 Conceding that it had certain rights to monitor the work of

Monument under the contract, Island Creek points out that the
blasting activity on August 1, 1984, which gave rise to the
issuance of the Order of Withdrawal was performed and controlled
by Monument, and Island Creek exercised no control over the
manner in which the blasting was conducted.

 With regard to the UMWA's reliance on the Pine Tree

decision, Island Creek states that the imminent danger order
which triggered the claim for section 111 compensation was issued
when an active gas well was mined into by Pine Tree. Buffalo
Mining Company was brought into the compensation proceeding by
both Pine Tree and the UMWA, and the issue presented was whether
Pine Tree or Buffalo or both were liable under the facts
presented to pay compensation to the miners idled by the order.

 Island Creek points out that in the Pine Tree case, Pine

Tree was held liable since it operated the mine, employed and
paid wages to the miners, and was served with the withdrawal
order. The condition giving rise to the withdrawal order was
found to be the responsibility of Buffalo. Further, Island Creek
points out that in relying on several cases which addressed the
liability of owners for safety violations of their contractors,
Judge Broderick found by analogy that Buffalo was jointly and
severally liable. The test applied was, ". . . 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."

 Island Creek maintains that while the overall contractual

relationship between Pine Tree and Buffalo may be similar to that
of Monument and Island Creek, the operative facts in this
proceeding are significantly different from those in Pine Tree.
By contract right and in practice,

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Buffalo undertook, for a charge paid by Pine Tree, to furnish
written plans and projections to be followed by Pine Tree. Pine
Tree was operating with mine maps so furnished by Buffalo when
the gas well, not identified on such maps was struck. Having
undertaken preparation of mine maps, the conditions (inaccurate
maps) which gave rise to the withdrawal order were clearly the
responsibility of Buffalo. As further evidence of this
responsibility, Buffalo actively assisted in the work of abating
the withdrawal order.

 Island Creek argues that in the present proceeding, the

conditions (blasting) which gave rise to the withdrawal order
were clearly performed by and within the sole control of
Monument. Island Creek had not undertaken responsibility for
Monument's operations nor did it exercise any control over the
manner in which Monument conducted the blasting at those
operations. These conditions were, by contract and in practice,
the responsibility of Monument. Island Creek concludes that the
facts in the instant proceeding do not support, under the test
enunciated in Pine Tree, a finding that Island Creek is liable
for compensation in whole or in part for payment of compensation
to employees of Monument under section 111 as a result of the
closure order issued to Monument.

                   Findings and Conclusions

 In the Pine Tree case, Judge Broderick held Buffalo liable

jointly and severally with its independent contractor Pine Tree
because Buffalo supplied the contractor with certain mine maps
which did not identify the location of the gas well which was
struck. When the contractor mined into the well, it contacted
Buffalo's engineering department who assured the contractor that
no such well existed. When it was discovered that a well was in
fact mined into, an imminent danger withdrawal order was issued,
and it was the basis for the claimed compensation. Since Buffalo
had failed to note the existence of the gas well which it
furnished its contractor, and since it gave further inaccurate
advice to the contractor concerning the existence of the well,
Judge Broderick found that Buffalo was culpable, that it assisted
in the abatement, and that the violation was its responsibility.
In essence, Judge Broderick found a nexus between Buffalo's
conduct and the issuance of the order which idled the miners, and
one may conclude that he found the proximate cause of the
withdrawal order was Buffalo's failure to advise its contractor
of the existence of the gas well, and the mis-information or
advice it gave to Pine Tree after the matter was called to its
attention.

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In the Pine Tree case, Judge Broderick found that Buffalo
supervised the contractor's mining and mapping projections, and
supervised its activities in this regard. These facts are not
present in the instant case. In this case, there is nothing to
suggest that Island Creek's conduct in any way impacted on the
issuance of the withdrawal order. The blasting operation which
prompted the issuance of the withdrwal order was performed and
controlled by Monument, and Island Creek played no role in that
incident, nor did it in any way assist in the abatement. In
short, I find no connection whatsoever between Island Creek and
the violative conditions which prompted the withdrawal order
giving rise to the compensation claims.

 The UMWA's argument that refusing to impose liability on

Island Creek in this case would permit it to shield itself from
future liability for contractor violations because there would be
no incentive for it to hire responsible contractors who have
little incentive to comply with mandatory standards are not well
taken. In the first place, there is no evidence to support the
UMWA's assertion that Monument Mining was a "fly by night"
contractor. Further, I find it highly unlikely that Island Creek
would knowingly retain such a contractor and subject itself to
liability for civil penalty assessments and closure orders for
violations of the Act's mandatory safety or health standards. On
the facts of this case, it seems obvious to me that the UMWA is
looking to Island Creek for payment of the claimed compensation
because it has no other recourse, and has no one else to look to.
Rather than filing a responsive answer to my Show Cause Order as
to why Monument should not be held in default and liable for
payment of the claimed compensation because of its failure to
file responses to my pretrial orders, the UMWA joined Island
Creek as a convenient party-respondent simply because it is the
owner of the coal lease and has reachable financial resources for
payment of the compensation. I believe that something more must
be established.

 With regard to the UMWA's arguments that a failure to hold

the mine owner liable for compensation on the facts of this case
will inhibit MSHA inspectors from issuing withdrawal orders, and
will inhibit miners from filing complaints because of the
economic consequences, I can only observe that an inspector's
first consideration should be the safety of the miners. He has a
duty to act regardless of any economic considerations. This
applies equally to miners. Their first consideration should be
their safety,

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not the fact that they might not be compensated for time lost
because of a closure order.

 Judge Broderick's decision to hold Buffalo liable for the

acts of its contractor Pine Tree was based on his conclusion that
the conditions giving rise to the withdrawal of miners was the
responsibility of Buffalo, Secretary v. Phillips Uranium
Corporation, 4 FMSHRC 549 (1982). He also cited Bituminous Coal
Operators Association v. Secretary, 547 F.2d 240 (4th Cir.1977),
and Secretary v. Republic Steel Corporation, 1 FMSHRC 5 (1979),
1969 Coal Act cases which held that mine owners may be held
liable for safety violations committed by independent
contractors.

 In the Philips case, a case arising under the 1977 Mine Act,

the Commission ordered the dismissal of Phillips as the
responsibility party for the violations which gave rise to the
civil penalty assessments, and it did so on the basis of its
conclusion that the Secretary had reason to know that the
contractor created the violative conditions which gave rise to
the citations and orders, and was in the best position to
eliminate the hazards and prevent them from recurring. The
Commission applied this same test in a recent case decided on
August 20, 1985, Secretary v. Calvin Black Enterprises, Docket
Nos. WEST 80-6-M, 80-21-M, and 80-82-M, where it affirmed a
judge's conclusion that Calvin Black Enterprises, as the mine
owner-operator, contributed to the violation and was in the best
position to eliminate the hazard and prevent it from recurring.

 With regard to the Rushton case cited by the UMWA to support

its "no fault" theory of liability for compensation claims, I
note that the case was decided under the 1969 Coal Act before the
Commission's decisions interpreting independent contractor
liability under the 1977 Mine Act and the Secretary's independent
contractor regulations. I also note that the Court in Rushton
relied on the statutory distinctions concerning the issuance and
"finality" of the orders in question, particularly with respect
to the Congressional understanding as to the differences between
an order which is ultimately upheld and one which is ultimately
vacated, and the compensation which should be paid by the mine
operator as a result of such orders. That case did not involve an
independent contractor. It turned on the liability of an operator
for orders subsequently found to have been issued in error by
MSHA. I reject the UMWA's suggestion that this "no fault" theory
should be applied across-the board in compensation cases
adjudicated subsequent to the 1977 Mine Act.

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I believe that such adjudications must be made on a
case-by-basis, with the focal point being the Commission's test
as applied in the Phillips and Calvin Black Enterprises cases.

 In view of the foregoing findings and conclusions,

particularly my findings that Island Creek was in no way
responsible for the violative conditions which gave rise to the
withdrawal order idling the miners, I reject the UMWA's assertion
that as the mine owner, Island Creek should be held liable to pay
the compensation in question. To the contrary, I conclude and
find that the responsibility for paying the compensation lies
with Monument Mining Company, the responsible mine operator.
While it is unfortunate that Monument is no longer in business, I
find no basis for the UMWA's attempts to hold Island Creek liable
for the payment of these claims.

 I further find and conclude that in view of Monument Coal's

failure to respond to my pretrial orders, to the complainant's
discovery requests, or to otherwise defend this case, it is in
default, and IT IS ORDERED to pay the compensation claims filed
against it by the UMWA.

 Insofar as the UMWA's complaint against Island Creek Coal

Company is concerned, IT IS DISMISSED.

                         George A. Koutras
                         Administrative Law Judge