Eastern Associated Coal Corporation

Plain-English summary

Local Union 1570 sought compensation for miners who were idled for 3.5 shifts after MSHA issued two Section 104(d)(2) orders at Eastern Associated Coal Corporation's Federal No. 2 Mine. Judge George A. Koutras found a sufficient connection between one order and the idling of miners assigned to the 14 Right 3 South Longwall Section, so those miners were entitled to lost wages and interest. He found no sufficient connection for miners in other mine areas, denied those claims and the union's request for attorney's fees, and left the compensation amounts for a later joint stipulation and supplemental final order.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1002; 30 U.S.C. § 821
• Outcome: Compensation claims for affected longwall miners were granted with interest, other miners' claims and attorney's fees were denied, and the parties were ordered to stipulate the amounts before a supplemental final order.
• Key point: Section 111 compensation requires a reasonable connection between the withdrawal order and the miners' lost work.

Full text (FMSHRC public release)

CCASE:
LOCAL UNION 1570, DIST. 31, (UMWA) V. EASTERN ASSOCIATED COAL
DDATE:
19890406
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 1570, DISTRICT 31, COMPENSATION PROCEEDING
UNITED MINE WORKERS
OF AMERICA (UMWA), Docket No. WEVA 88-227-C
COMPLAINANTS
Federal No. 2 Mine
v.

EASTERN ASSOCIATED COAL
CORPORATION,
RESPONDENT

                        DECISION

Appearances: Joyce A. Hanula, Legal Assistant, United Mine
Workers of America, Washington, D.C., for the
Complainants;
Eugene P. Schmittgens, Jr., Esq., Eastern
Associated Coal Corporation, Pittsburgh,
Pennsylvania, for the Respondent.

Before: Judge Koutras

               Statement of the Proceeding

 This proceeding concerns a claim for compensation filed by

the UMWA against the respondent pursuant to the third sentence of
section 111 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 821, seeking compensation for miners employed at the
captioned mine who were idled for 3-1/2 shifts, from 8:00 p.m.,
on February 9, 1988, to midnight on February 10, 1988. The UMWA
contends that the mine was idled as a direct result of two
section 104(d)(2) orders issued at the mine by an MSHA inspector,
and the respondent maintains that the mine was idled because of a
legitimate business decision by mine management. A hearing was
held in Morgantown, West Virginia, and the parties filed
posthearing arguments in support of their respective positions. I
have considered these arguments in the course of my adjudication
of this matter.

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Issues

 The issues presented are (1) whether or not the orders in

question were final orders within the meaning of the Act; (2)
whether the mine or miners were idled by those orders; and (3)
whether the miners are entitled to compensation.

      Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub. L.

95-164, 30 U.S.C. 801 et seq.

   2. Commission Rules, 29 C.F.R.   2700.1 et seq.

Stipulations

   The parties stipulated to the following:

        1. The members of Local Union 1570 are employed at
        Eastern's Federal No. 2 Mine.

        2. The UMWA is the authorized representative of the
        members of the Local Union 1570.

        3. The Federal No. 2 Mine is a mine whose operations
        and products affect interstate commerce.

        4. On February 8, 1988, at 6:25 p.m., MSHA Inspector
        Michael G. Kalich issued Order No. 2943582 pursuant to
        Section 104(d)(2). Order No. 2943582 applied to the
        Federal No. 2 Mine. A copy of said order was attached
        and marked as Exhibit A to the joint stipulations of
        fact.

        5. On February 10, 1988, at 12:00 noon, Order No.
        2943582 was vacated. A copy of the document vacating
        said order was attached and marked as Exhibit B to the
        joint stipulation of fact.

        6. On February 8, 1988, at 6:30 p.m., MSHA Inspector
        Michael G. Kalich issued Order No. 2943583 pursuant to
        Section 104(d)(2). Order No. 2943583 applied to the
        Federal No. 2 Mine. A copy of said order was attached
        and marked as Exhibit C to the joint stipulation of
        fact.

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7. On February 10, 1988, at 12:00 p.m., Order No. 2943583 was
modified. A copy of said modification was attached to the joint
stipulation of fact and marked as Exhibit D.

      8. Order No. 2943583 was terminated at 3:05 p.m., on
      February 10, 1988. A copy of said termination was
      attached to the joint stipulation of fact and marked as
      Exhibit E.

      9. The above referenced orders restricted Eastern from
      operating the 14 Right 3 South Longwall section.

      10. After the issuance of the above referenced orders,
      the Federal No. 2 Mine continued to operate 2-1/2
      shifts.

      11. The Federal No. 2 Mine was idle from 8:00 p.m., on
      February 9, to midnight February 10, 1988.

      12. Miners returned to work on the 12:00 a.m. shift on
      February 11, 1988.

      13. The names of the miners idled, their idle time,
      rate of pay, and alleged lost wages was attached to the
      joint stipulation of fact and marked as Exhibit F.

      14. The aforementioned Order Nos. 2943582 and 2943583
      were not contested under Section 105(d) of the Federal
      Mine Safety and Health Act of 1977.

      15. It is the position of the UMWA that the Federal No.
      2 Mine was idled as a direct result of the above
      referenced orders.

      16. It is the position of Eastern that the mine was
      idled as the sole result of a business decision made by
      management at the Federal No. 2 Mine.

Complainant's Testimony and Evidence

 MSHA Inspector Michael G. Kalich testified that he visited

the mine on February 8, 1988, after being instructed to do so

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by his field supervisor who had received a call that the
respondent was operating its longwall section. Mr. Kalich stated
that at the time of his inspection of the longwall section a
previously filed petition for modification seeking relief from
the requirements of mandatory safety standard 75.1002, was still
pending for decision by MSHA. He confirmed that he issued section
104(d)(2) Order No. 2943582, on February 8, 1988, at 6:25 p.m.,
citing a violation of section 75.1002, and that he did so because
of the respondent's failure to comply with one of the conditions
of the petition, namely paragraph 7, which required the
respondent to provide overtemperature protection for the
high-voltage neutral grounding resistor used in the high-voltage
circuit supplying the longwall power center (exhibit R-2,
Petition for Modification filed December 1, 1987). Mr. Kalich
issued the order because he found that the longwall power center
was energized, that some amount of coal had been produced, and
the overtemperature device required by paragraph 7 of the
petition had not been installed (Tr. 6-8).

 Mr. Kalich confirmed that he subsequently vacated Order No.

2943582 after being informed by his supervisor that he could not
issue a violation based on a pending petition for modification
which had not been granted. He also confirmed that he could not
have issued the order citing a violation of section 75.1002
independent of the modification petition because the power center
was outby the area, and the vacated order in question was based
on paragraph 7 of the pending modification petition rather than
on section 75.1002. He explained that he cited a violation of
section 75.1002 "because that is what the petition is based on,
relief of that standard," but he confirmed that the cited
condition was not in violation of section 75.1002 (Tr. 9-11).

 Mr. Kalich confirmed that he issued the second section

104(d)(2) Order No. 2943583, at 6:30 p.m., on February 8, 1988,
on the longwall section citing a second violation of section
75.1002, because he found that the high voltage cables on the
section were located inby the last open crosscut and were within
150 of the pillar workings. These conditions were independently
in violation of the requirements of section 75.1002, and he based
the order on that section rather than on paragraph 7 of the
pending modification petition. Since he could not base the order
on the petition, he simply included the language referencing the
petition from the prior vacated order as part of the subsequent
Order No. 2943583, by modifying it on February 10, 1988 (Tr. 8,
11-12; Exhibits C & D, stipulations). Mr. Kalich confirmed that
the order was terminated on February 10, 1988, by another
inspector who was regularly assigned to the mine (Tr. 12; Exhibit
E, stipulations).

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On cross-examination, Mr. Kalich stated that he never closed the
mine or required that any miners be withdrawn, and that "I just
required that the power center be de-energized" (Tr. 13). With
regard to the cited overtemperature device mentioned in Order No.
2943582, he confirmed that "it was repaired after I issued the
order," and a copy of the order reflects that it was terminated
at 7:35 p.m. the same evening that it was issued (Tr. 13; Exhibit
A, stipulations). He confirmed that with respect to both orders,
he simply required the power to be deenergized, and that by doing
this, no coal could be mined but that "they could do any kind of
setup work they wanted to do" (Tr. 18). Although he did not
remain at the mine after he issued the first order, he "heard
that men were laid off" (Tr. 18).

 Terry Osborne UMWA District #31, International Safety

Representative, testified that he was familiar with the
modification petition in question and that prior to its filing
and the issuance of the orders by Inspector Kalich,
representatives of the UMWA and mine management were meeting to
discuss the conditions to be included in the petition for its
approval. The last meeting was held on January 29, 1988, and as
of that date, the UMWA had not agreed upon the terms for approval
of the petition. When he learned from the local union president
that the respondent intended to operate the longwall while the
petition was still pending, he placed a call to MSHA and
requested an investigation into the possibility of the long-wall
being operated with high voltage at the face without the petition
being granted. As a result of this call, MSHA inspectors were
sent to the mine on the afternoon shift when the orders were
issued. The petition was subsequently granted on February 10,
1988, 2 days after the orders were issued (Tr. 19-22).

 On cross-examination, Mr. Osborne confirmed that in the

course of the meetings with mine management with respect to the
petition, the future of the mine was discussed, and mine
management expressed the view that in the event the petition were
not granted the mine would "suffer severe consequences" (Tr. 23).
Mr. Osborne stated that mine management advised the union that if
the petition were not granted the mine would be shut down and
that "This mines will not operate unless the petition is granted
and this longwall is running" (Tr. 24).

 Mr. Osborne agreed that longwalls produce more coal more

efficiently than continuous miners, and that unless coal is mined
economically the mine will not make money. He also

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agreed that the mine operator may decide which method of mining
to use in its mine, and that layoffs occur in the mining industry
for mines which do not make money (Tr. 25). He stated that the
mine had in the past operated for years with a longwall without
the necessity for filing a petition and without high voltage at
the face of the longwall, and that "they did excellent" (Tr. 28).

 Larry Knisell, president of the local union and member of

the mine safety and health committee, testified that he was
familiar with the modification petition in question and the
orders issued by Inspector Kalich. He confirmed that he took part
in the meetings with mine management with regard to the petition
and that the local union did everything it could to "help it
along," and he realized that management needed the high voltage
at the longwall (Tr. 30).

 Mr. Knisell stated that he learned that the longwall had

been running on February 8, 1988, the day the order was issued.
He confirmed that when the order was issued, the miners worked
the rest of that day, and that on February 9, the four to twelve
shift was idle for 4 hours, and that on February 10, "there was
some work done in the mines." The 15 longwall development section
was being "driven up one side to set the longwall on," and that
coal was being produced on the 15 Right 3 South Section. He did
not know whether any other sections were producing coal at this
time (Tr. 32). He confirmed that it was common knowledge at the
mine that if the petition were not ultimately approved there
would be "serious economic consequences," and that he became
aware of this sometime in January, 1988 (Tr. 32).

Respondent's Testimony and Evidence

 General Mine Superintendent Mick Toth testified that the

February 8, 1988, order issued by Inspector Kalich was of "no
importance" because the reason for not operating the longwall was
the fact that the petition for modification had not been granted.
Mr. Toth confirmed that he was never told that the inspector had
closed the mine or required the withdrawal of any miners at the
longwall or any other section of the mine. He explained that
meetings and discussions were held with union representatives,
MSHA personnel, and mine management as early as 3-weeks prior to
the granting of the petition, and he advised everyone concerned
that "there would be some economic impact to the mines" if the
petition were not granted (Tr. 43). Mr. Toth identified a copy of
a memorandum dated January 13, 1988, addressed to the
respondent's law department, which he sent at their request,
making it aware of the economic impact

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resulting from the unavailability of the longwall (Tr. 45-46;
Exhibit R-1). He also identified a copy of a letter dated January
13, 1988, from the respondent's attorney to MSHA requesting
expedited consideration of the modification petition, and
advising MSHA of the adverse economic impact on the mine if the
petition were not granted (Tr. 47; Exhibit R-2).

 Mr. Toth stated that the mine is a profitable mine, and he

confirmed that it produces coal on a longwall section and four
belt and continuous miner sections. He explained the coal
production figures, and confirmed that by February 3, 1988, all
of the available coal on the longwall panel had been mined, and
that no coal production took place on that longwall from February
3 to February 8, 1988 (Tr. 49-52). He produced copies of the mine
production records for January and February, 1988, and confirmed
that for the period January 29 to February 3, 1988, coal
production on the longwall was reduced by 110,000 tons (Tr. 55;
Exhibits R-3 and R-4).

 Mr. Toth stated that during the period from February 3 to

the afternoon shift on February 9, no miners were idled, and he
confirmed that if the petition for modification had been granted
prior to February 9, the mine would not have been closed (Tr.
56). He explained that the power was on the longwall section on
February 8, in order to make the necessary startup "trim pass"
adjustments in anticipation of the granting of the modification
petition. Mr. Toth stated further that power was on the section a
week earlier, and none of the union representatives or MSHA
inspectors who were at the face objected. He confirmed that he
had no intention of mining coal on the longwall until the
petition was granted, and that the section 104(d)(2) orders had
nothing to do with his decision to idle the mine on February 9
(Tr. 57-58).

 On cross-examination, Mr. Toth confirmed that the

modification petition was filed on December 1, 1987, and that the
approval process is time consuming. In instances of previously
filed petitions, "interim relief" was available to a mine
operator pending final approval by MSHA, but this procedure is no
longer available. Although he believed that the union did
everything it could to support the petition, delays and
disagreements with respect to the conditions upon which the
petition could be approved were encountered (Tr. 60).

 Mr. Toth confirmed that the longwall section in question was

energized on February 4 or 5, and the cables were energized so
that equipment could be moved. He stated that he made several
calls to MSHA personnel and they informed him that if the
petition had not been granted they could not advise him to

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put the longwall into production, and apart from any "trim pass,"
no coal production was started on the longwall until final
approval of the petition was received (Tr. 63-64). Mr. Toth also
explained that the power was on so that the MSHA inspectors could
check all electrical connections and startups to confirm that the
conditions under which the petition were to be granted were being
followed, and that this was taking place on or about February 4
(Tr. 67).

 Mr. Toth explained that during the day shift on February 8,

a "trim pass" was made on the longwall section, and this process
included necessary adjustments to the shearing machine cable and
chain. He stated that this process did not involve the normal
production cutting and mining of the coal, and that the "trim"
only cut away 2 inches of coal, rather than the usual 30 inch cut
taken during normal production. The longwall shields were not
advanced, there were no roof falls behind the shields, and there
was no gob. The section was "active," the power was on, miners
were working, and he believed that the belt was running to take
out the trimmed coal (Tr. 73-74). Mr. Toth confirmed that all of
the miners who were subsequently idled were working and involved
in this process on February 8, and that the petition had not been
approved as of that date. He stated that everyone at the mine was
aware of the fact that the petition had not as yet been approved
at that time (Tr. 79-80). Mr. Toth could not recall speaking with
union president Knisell after the orders were issued (Tr. 81).

 In response to a question as to why the miners were idled on

February 9, Mr. Toth responded as follows (Tr. 81-82):

      The reason for the idlement on February 9th, you have
      to realize that throughout this whole period it was
      always getting right on the edge, yeah, we'll have it,
      or already been sent by FAX, the MSHA office, as soon
      as you get there in the morning, it'll be there at your
      mine.

      That had gone on for several days. I went along with
      that. I didn't want to idle any miners. I want to make
      every dime I can make and mine every ton of coal I can
      mine. But the fact was that on February 9th I just got
      completely fed up hearing all I was going to hear about
      being there in the next hour or two. It dealt -- there
      were some pretty big losses throughout this period.

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I felt from the period January 28th until the time they granted
the petition which was the 10th of February, I just couldn't take
no more losses. Economic factors, that was my sole reason for
doing what I did, and it was something I didn't want to do, but
had to do.

 Mr. Toth stated that the four continuous miner sections

which were in operation on February 8, accounted for
approximately 25 percent of the mine production, and that he had
full crews working that day. Only one of these developing
sections was working on February 10, and the only miners working
on this day were those who he believed were necessary to start up
the longwall in order to bring the other miners back to work. The
longwall started into production on February 11 (Tr. 86-87).

  Frank Peduti, Respondent's chief maintenance supervisor,

testified that he is responsible for all mine electrical
activities. He confirmed that he was at the 14 Right Longwall
section on February 8, 1988, making certain adjustments in
preparation "to set up the new longwall section" (Tr. 111). He
discussed the modification petition with Inspector Kalich, and
whether or not an additional overtemperature device had been
installed in the load center. Mr. Peduti stated that "I had the
part in hand" and that it took 15 minutes to install it (Tr.
112).

 On cross-examination, Mr. Peduti stated that at the time he

spoke with the inspector and installed the overtemperature
device, as well as before going underground that day, he did not
"assume one way or the other" that the modification petition had
not as yet been granted (Tr. 113).

 Mick Toth was recalled and explained that the drop in coal

production after the modification petition was granted, as shown
by his production records, was due to the fact that after mining
for 100 feet with the longwall startup, rock displacement was
encountered, and throughout the end of February and the first 2
weeks of March "we encountered some difficult problems on that
particular longwall panel" (Tr. 120). He reiterated that the
order issued by Inspector Kalich had nothing to do with his
decision to idle the mine, and he explained that he was
aggravated and frustrated over the promises and assurances that
the modification petition approval was imminent, and when it did
not materialize "I just couldn't wait no longer. I got myself
where I had no longwall production. I was in some big losses and
I had no other

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choice but to do what I did. That order had nothing to do with
that" (Tr. 121, 124). Mr. Toth further explained as follows at
(Tr. 121-125):

      Q. Could you have used these men on anything else?

      A. Not and make money.

      Q. Could you have used them on anything else? What do
      you mean "not make money?" Couldn't you have used them
      on the other section, the continuous mining section?

      A. No-- Yeah, I could have used them. I could have.
      I've got 580 people at that coal mine and what
      justified that employment of 580 people is the amount
      of tons and amount of profit to be made. If those
      profits and tons aren't made, there's a reasoning for
      that. The reasoning for that period of time was the
      lack of the granted Petition for Modification that had
      been filed for.

                         * * * * * * *

      A. There were other people that worked in the mine.
      Like I say, there were other people that worked
      throughout that period that the mine was idled on a
      development section. We had a crucial situation at that
      coal mine on our developments keeping up with retrieve.
      And the development that I had great concerns about was
      one immediately outby the longwall.

                         * * * * * * *

      Q. I'm not going to put myself in the position to
      cross-examine you, but this next question. What better
      way of getting someone's attention to shut the whole
      mine down? I mean, if I were the superintendent and
      being frustrated, I'd say, well, the heck with it, I'm
      just going to shut her down and let's see if we can't
      get some action on that petition. Is that what
      happened?

      A. That's basically what happened. We had no petition
      and we just -- what we didn't need,

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you know -- I can't employ 500 people if I don't have any work
for them. I worked what I could and I worked areas I thought were
crucial to the future of that coal mine. What I didn't work I
didn't need or I'd have worked them.

Complainant's Arguments

 In its posthearing brief, the UMWA asserts that since the

respondent did not contest the section 104(d)(2) Order No.
2943583, issued by Inspector Kalich at 6:30 p.m., on February 8,
1988, it waived its right to challenge the order pursuant to
section 105(d) of the Act, and that in the circumstances, the
order has become final. Since the third sentence of section 111
of the Act provides that compensation is due after an order upon
which it is based is "final," the UMWA states that the next
critical issue to be resolved is whether a nexus existed between
the order and the miners being idled. Local Union 781, District
17, UMWA v. Eastern Associated Coal Corp., 3 FMSHRC 1175 (May
1981); Local Union 1889, District 17, UMWA v. Westmoreland Coal
Co., 8 FMSHRC 1317 (September 1986) and Local Union 2333,
District 29, UMWA v. Ranger Fuel Corp., 10 FMSHRC 612 (May 1988).

 The UMWA asserts that the order in question restricted the

longwall section from operating until the pending petition for
modification was granted, and that this in turn forced the
respondent to idle the entire mine because it would not be
economically feasible to operate it at a reduced productivity
level. Under these circumstances, the UMWA concludes that a
"nexus" existed between the issuance of the order and the
idlement of the miners. In support of its position, the UMWA
maintains that the evidence presented clearly demonstrates that
the mine would have continued to work through the period of
idlement "but for" the issuance of the order. The UMWA asserts
that the evidence shows that the respondent was "fed up" with
MSHA's delay in acting on the petition for modification and that
Mine Superintendent Mick Toth believed that the economic
situation required him to start up the high-voltage longwall,
even though he did not have the necessary modification from the
requirements of 30 C.F.R. 75.1002. The UMWA concludes that it
is evident that the respondent intended to mine coal without the
necessary modification and would have continued to do so had the
inspector not issued the withdrawal order.

 Citing the Commission's decisions in Local Union 5869,

District 18, UMWA v. Youngstown Mines Corp., 1 FMSHRC 990 (August
1979), Local Union 3453, District 17, UMWA v. Kanawha

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Coal Co., 1 FMSHRC 1315 (September 1979), and Local Union 1670,
District 12, UMWA v. Peabody Coal Co., 1 FMSHRC 1785 (November
1979), the UMWA argues that the fact that the mine continued to
work two and one-half shifts after the order was issued does not
preclude the miners from receiving compensation because the order
was still outstanding when the miners were idled. Citing the
Local Union 5869, District 17, UMWA v. Youngstown Mines Corp.,
case, the UMWA points out that a withdrawal order was issued on
the afternoon shift and miners on that shift were withdrawn from
production work and detailed to work abating the violation. Every
miner who worked on the afternoon shift was paid for the entire
shift, but the evening shift employees who were also assigned to
abatement work worked only 4 hours and were then sent home. The
evening shift employees were paid for the first 4 hours they
worked but not for the remaining 4 hours of the shift. In
response to a compensation claim filed seeking compensation for
the 4 hours of the evening shift that did not work, the
Commission granted them compensation for the 4 hours and stated
as follows at 1 FMSHRC 992:

      [A]t the time the miners were sent home the withdrawal
      order was still outstanding. But for the withdrawal
      order, the miners would have worked and received
      compensation for the final hours of their shift.

Respondent's Arguments

 In its posthearing brief, the respondent concedes that it

did not contest the order in question within the required 30
days. However, citing Secretary of Labor v. Quinland Coals, Inc.,
9 FMSHRC 1614, 1620 (September 1987), the respondent points out
that while it has the opportunity to contest the validity of the
order at the civil penalty phase, MSHA has indicated there has
been no civil penalty assessment proposed for the violation cited
in the order, and that no assessment will be made. Further,
citing Local Union 1810 v. Nacco Mining Company, 9 FMSHRC 1349
(August 1987), holding that a mine operator's rights under
section 105(d) of the Act must be either exhausted or waived
before the Commission may order compensation pursuant to section
111, the respondent suggests that it has not been given its full
rights to contest the order and that the Commission does not yet
have jurisdiction in this case. In the alternative, respondent
points out that since MSHA has indicated that it would not be
issuing a civil penalty assessment in this matter, and in light
of the approval of its petition for modification, it appears that
the order in question has been de facto vacated. If this is the
case, respondent

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further suggests that the Commission may proceed to decide this
case.

 With regard to the merits of the compensation claim, the

respondent maintains that the idled miners are not entitled to
compensation pursuant to section 111 of the Act because they were
not idled by the order in question and the evidence fails to
establish any nexus between the issuance of the order and the
idlement and closure of the mine some two and one-half shifts
after it was issued. Respondent points out that the UMWA has
conceded that if the mine had been idled on January 29, 1988,
until the modification petition was ultimately granted on
February 11, 1988, there would be no case (Tr. 76-77), and that
presumably, the local union membership would then have been
without recourse for approximately 2 weeks of lost wages.
Respondent suggests that the union would have the Commission
"punish" the respondent for keeping its membership working
through significant economic losses notwithstanding the fact that
section 111 of the Act was not designed for this purpose.

 In support of its position, the respondent asserts that in

the absence of a nexus between a designated withdrawal order and
the miners' idlement and loss of pay, or between the underlying
reasons for the idlement and pay loss and the reason for the
order, compensation pursuant to section 111 of the Act is not
available. Respondent argues that section 111 is not intended to
be punitive, but recognizes that miners should not lose pay
because of the operator's violations, or because of an imminent
danger which was totally outside of their control. Quoting from
Local Union No. 781 v. Eastern Associated Coal Corp., supra,
respondent states that "mere occurrence, alone of withdrawal or
idlement and issuance of an order does not, by itself, justify
compensation," and that miners are considered to be idled by a
withdrawal order whenever the order prevents them from working,
Local Union 3454 v. Kanawha Coal, supra.

 The respondent maintains that the overwhelming evidence in

this case clearly shows that the cause of the idlement of the
miners was due to the severe economic losses suffered by the mine
from January 28, until February 9, 1988, and that as early as
January 13, 1988, mine superintendent Toth advised the
respondent's legal counsel that it would not be economically
feasible to operate the mine at reduced productivity without the
longwall, and that drastic workforce reductions would be
inevitable. At approximately the same time, representatives of
the UMWA union local and international were advised of the
possibility of layoffs without the approval of

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the modification petition. Since this occurred approximately 1
months before the mine was idled, the respondent concludes that
the idlement of the mine was contemplated well in advance of the
issuance of the order, and that the evidence shows a consistent
approach by the respondent to the economic realities it faced.

 Respondent states that the evidence establishes that mine

management attempted to keep the mine open, and that when the
operational longwall was mined out some 2 weeks before the order
was issued, management opted to extend the panel some 300 feet so
that the mine would not have to be idled. Although this action by
management resulted in a 50 percent reduction of production
capacity, and ended on February 3, 1988, when the coal could no
longer be mined safely, the mine still remained open for
approximately 1 week even with no longwall production.

 Respondent points out that when the order was issued on

February 8, 1988, the mine remained opened, and Inspector Kalich
testified that he was neither withdrawing miners from the mine,
nor was he withdrawing them from the 14 Rt. 3 South Longwall
section. Contrary to the UMWA's contention that the order caused
the mine to be idled, respondent maintains that the evidence
shows that only a few miners assigned to the long-wall section
ever were idled, and that the obvious implication is that even
after the mine was closed the workers at the affected section
were never idled, and that the order did not prevent the miners
from working.

 The respondent views the UMWA's assertion that the sole

reason for the idlement of the mine was the order issued by
Inspector Kalich, as implausible in that "it would be a quantum
leap in logic to presume" that the information communicated to
the union by mine management relative to the economic
implications of the failure to obtain the modification petition
was somehow created by management to "jack with the union." If
anything, the respondent concludes that management took a
consistent approach to keep the mine open and to keep the union
local's membership working. Since the UMWA has acknowledged the
respondent's authority to close a mine if it is not profitable,
respondent concludes that this authority presumably also applies
to a section of the mine as well. Since the logical implication
of the evidence is that the order did not require the mine to be
closed, respondent maintains that other factors were involved,
namely the economic conditions expressed in its January 13, 1988,
correspondence, as well as the meetings held with UMWA members.

Page 16

~545
Applying the Commission's observations in Local Union No. 781 v.
Eastern Associated Coal Corp., supra, that it would "examine the
relationship between the underlying reasons for the withdrawal
and for the order, and will give balanced consideration both to
the limited and purely compensatory character of section 111 and
to the overall safety purposes of the 1977 Mine Act and section
111 itself," Id at pg. 1178, the respondent concludes that it is
clear that the "safety" aspects of the Act, as well as section
111's mandate to pay compensation, are not at issue in this case
because the order clearly never required the miners to be
withdrawn and the alleged "safety" violation was remedied by
shutting down the power.

 Respondent concludes that the UMWA's evidence simply

establishes that an order was issued, and, at some point, the
mine was idled. Given the fact that the UMWA has conceded that if
the mine were shut down on January 28, there would be no case,
and assuming the mine were idled on February 3 or 8, or even the
9th, and no order had been issued, "then too there would be no
case," respondent suggests that it would appear that the UMWA has
conceded the central issue in this case, i.e., the mine without
the modification petition could not operate profitably, and thus
the order did not cause it to be idled. Since the respondent is
under no obligation to continue to operate a mine which loses
money, respondent believes that the UMWA's assertion that
everyone at the mine should have been kept on, even though
production was down some 75 percent, is contrary to the testimony
of its witnesses and contrary to accepted practices in not only
the coal industry, but in business in general, and must be
rejected.

 The respondent asserts that even if the implication that the

decision to idle the mine was made to spur MSHA to act on the
petition, there still would be no right to compensation because
it may only be awarded when a miner is idled due to the issuance
of a withdrawal order. Absent a nexus between the idlement and
the order, there can be no compensation. Even assuming arguendo
that the mine was idled to force MSHA to act on the petition for
modification, respondent concludes that the order did not factor
into the idlement decision. Even though mine management may have
caused its economic concerns to become a self-fulfilling
prophesy, the order would not be a factor which caused the mine
to close. Respondent maintains that this case reflects a
consistent approach on its part to keep the mine open, and that
it communicated to all persons involved the economic consequences
which would follow if the modification petition were not granted.
When production declined, management kept its employees on, and
even kept

Page 17

~546
them on after longwall production stopped even though it had no
obligation to do so. Respondent concludes that mine management
alone idled the mine after it determined that the losses were too
great to continue to operate.

               Findings and Conclusions

 Section 111 of the Act is intended to provide limited

compensation to miners who lose pay because of a withdrawal
order. The first two sentences of section 111 state 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 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.

 The compensation claims filed in this proceeding arise under

the third sentence of section 111, which states as follows:

      [I]f 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.
      (Emphasis added).

      The fourth sentence of section 111, provides as follows:

Page 18

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[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, 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 evidence in this case establishes that the first section

104(d)(2) Order No. 2943582, was issued by Inspector Kalich at
6:25 p.m., on February 8, 1988, and the "area" affected by this
order was the "14th Right 3 South Longwall Power Center." The
order cited an alleged violation of mandatory safety standard 30
C.F.R. 75.1002, and on its face stated that it was issued
because of the respondent's failure to comply with one of the
conditions stated in its then pending petition for modification,
namely, item No. 7, which required overtemperature protection for
a high-voltage neutral grounding resistor used in connection with
a high-voltage circuit supplying the longwall power center. The
cited condition was abated by the installation of the
overtemperature device in question, and the order was terminated
at 7:30 p.m., the same day it was issued. The order was
subsequently vacated by Mr. Kalich on February 10, 1988, after
his supervisor informed him that he could not support a violation
based on the respondent's alleged failure to comply with one of
the conditions associated with its then pending petition to
modify the requirements of section 75.1002. Mr. Kalich confirmed
this fact, and he also confirmed that he could not support a
violation of section 75.1002, independent of the modification
petition, and that the cited condition was not in violation of
that standard.

 With regard to the second section 104(d)(2) Order No.

2943583, issued by Inspector Kalich, the evidence establishes
that it was issued at 6:30 p.m. on February 8, 1988, 5 minutes
after the first one, and the "area" affected by this order was
"the 2400 volt power circuits of the 14 Rt. 3 South Longwall."
Inspector Kalich again cited an alleged violation of section
75.1002, and he confirmed that he issued the violation because he
found some energized 2400 high voltage cables located inby the
last open crosscut and within 150 feet of the

Page 19

~548
pillar workings. Although the order issued by Mr. Kalich makes
reference to the outstanding modification petition, and Mr.
Kalich later incorporated the language of the first order as part
of the second one when he subsequently modified it on February
10, he confirmed that he based his second order on an alleged
violation of section 75.1002, which prohibits locating high
voltage cables inby the last open crosscut and less than 150 feet
from pillar workings, rather than on the pending modification
petition. The second order was subsequently terminated at 3:05
p.m., February 10, 1988, by another inspector who was regularly
assigned to the mine. The justification for terminating the order
simply states that "the petition for modification of the
application of 30 C.F.R. 75.1002 is granted, for the 14 Right
through 17 Right, 3 South Longwall Panels only."

 Inspector Kalich confirmed that the effect of both orders

was to de-energize the power from the longwall power center, and
with the power down, no coal could be mined on the long-wall. He
also confirmed that the miners could continue to work on "setup
work," but he did not remain at the mine and simply "heard that
men were laid off." Mr. Kalich conceded that he did not order any
area of the mine closed, and that he never required the
withdrawal of any miners. Mine Superintendent Toth confirmed that
he was never advised that Mr. Kalich had closed the mine or
ordered the withdrawal of any miners. The parties stipulated that
the two orders restricted the respondent from operating the 14
Right 3 South Longwall panel, but that the rest of the mine
continued to operate for 2-1/2 shifts and all of the affected
miners were kept working without interruption performing longwall
maintenance work and working on the other continuous mining
sections after the orders were issued, until the mine was idled
by Mr. Toth at 8:00 p.m., on February 9, 1988. The mine remained
idle until midnight February 10, 1988, when the miners returned
to work for the shift beginning at 12:00 a.m., February 11, 1988.
The claimed compensation is for the 3-1/2 shifts which were idled
by Mr. Toth.

The Finality Issue

 Unlike the first two sentences of section 111 of the Act,

which entitles idled miners to compensation for lost wages
resulting from an order regardless of any review of the idling
order, the third sentence of section 111 contains two conditions
which must be met before compensation attaches. The first
condition requires a showing that the order was issued because of
the mine operator's failure to comply with a mandatory health or
safety standard, and the second condition

Page 20

~549
limits the availability of any compensation to an order which has
become final after an "opportunity for a public hearing."

 The parties have stipulated that the respondent did not

avail itself of its right pursuant to section 105(d) of the Act
to contest the orders issued by Inspector Kalich. Addressing
itself to the second order issued by Mr. Kalich (No. 2943583),
the UMWA maintains that since the respondent did not contest the
order within 30 days of its issuance, it has waived its right to
further challenge it, and the order has become final. Since it is
final, the UMWA concludes that jurisdiction attaches,
compensation is due, and that the next critical issue to be
resolved is whether or not a nexus existed between the order and
the miners who were idled. (I take note of the fact that the
UMWA's posthearing arguments are limited only to the second order
issued by Mr. Kalich).

 The respondent's posthearing arguments are also limited to

the second order issued by Inspector Kalich. Conceding that it
did not contest this order within the required 30 days,
respondent maintains that since it had not exhausted its right to
a review of the order in a civil penalty proceeding pursuant to
the Commission's Quinland Coals, Inc., decision, the order is not
final and jurisdiction to consider the compensation claims is
lacking. Alternatively, given the fact that its petition for
modification of the cited section 75.1002 has now been granted,
and the fact that MSHA will not initiate a civil penalty
proceeding, respondent suggests that the order has been de facto
vacated, and that the Commission may proceed to decide this
matter.

 The section 104(d)(2) unwarrantable failure orders issued by

the inspector in this case alleged violations of mandatory safety
standard 30 C.F.R. 75.1002. Pursuant to the third sentence of
section 111, miners idled as a result of an order issued for the
unwarrantable failure of an operator to comply with any mandatory
health or safety standard are entitled to compensation for such
time as they are idled, or for 1 week, whichever is the lesser,
and jurisdiction to hear and decide such claims attaches after
the order has become final. Commission review of such an order is
governed by the procedures found in section 105 of the Act, and
the Commission Rules, and not by section 111.

 Section 105 of the Act provides an operator with two

opportunities to contest an order issued pursuant to section 104,
and to request a hearing concerning any alleged violation which
prompted the issuance of the order. Subsection (d) of section 105
affords an operator with an opportunity to

Page 21

~550
immediately contest an order within 30 days of its receipt.
Subsection (a) of section 105 allows the operator to initiate a
contest with respect to any civil penalty proposal filed by MSHA
for the alleged violation stated in the order, and this may be
done within 30 days of MSHA's notification of the proposed civil
penalty assessment. In the Quinland Coals, Inc. case, supra, 9
FMSHRC at 1621-22, the Commission held that an operator may
challenge the fact of violation and any special findings made in
a section 104 order regardless of whether it availed itself of
the opportunity to contest the order in which the allegation of
violation is contained. See also: Local Union 2333, District 29,
UMWA v. Ranger Fuel Corporation, 10 FMSHRC 612, 618 (May 1988).

 The Ranger Fuel case involved a compensation claim filed by

the union pursuant to the third sentence of section 111 of the
Act. The Commission held that in a compensation proceeding, an
operator may not challenge the validity of a violation after it
has paid the civil penalty assessment because it would improperly
place the miners and their representatives in a prosecutorial
role to prove the violation, and would require them to perform
functions properly resting within MSHA's domain, 10 FMSHRC, at
pg. 619. The Commission went on to state that the issue of causal
nexus in a compensation case is independent of the allegation of
a violation and must be determined separately in order to
determine entitlement to compensation under the third sentence of
section 111. It concluded that an operator may litigate in a
compensation proceeding the issue of the causal relationship
between the order and the idlement of miners, but not the fact of
violation.

 The parties have stipulated that the respondent did not

contest the orders pursuant to the available review procedures
found in section 105(d) of the Act, and the Commission's Rules.
Insofar as its available rights under section 105(d) are
concerned, I agree with the UMWA's assertion that the respondent
has waived its rights under this section, and to this extent, the
orders are final. With regard to the respondent's contest rights
in a civil penalty proceeding pursuant to section 105(a) of the
Act, I recognize the fact that it has not yet had an opportunity
to avail itself of an opportunity to challenge the orders in any
civil penalty proceeding pursuant to the Commission's decision in
Quinland Coals, supra. However, on the facts of this case, it
does not appear that the respondent will ever have an opportunity
to challenge the orders in any civil penalty proceeding because
no such proceeding will be initiated by MSHA. The UMWA's counsel
confirmed that she was informed by MSHA's district office that
MSHA does not intend to file any civil penalty proposal with
respect to

Page 22

~551
Order No. 2943583, because of the fact that the modification
petition which was pending at the time the order was issued was
subsequently granted (Tr. 101). Since MSHA was not a party to
this proceeding, no further information or explanation was
forthcoming with respect to MSHA's apparent reluctance or refusal
to initiate a civil penalty proceeding with respect to the order
and the alleged violation.

 With regard to the first order (No. 2943582), the record

reflects that it was terminated within an hour of its issuance,
and subsequently vacated. The inspector candidly conceded that
the conditions cited in the order, including an alleged violation
of mandatory standard 30 C.F.R. 75.1002, could not be
supported, and that no violation existed, notwithstanding the
respondent's immediate abatement of the cited condition. Since
the order was obviously invalid, and no violation ever existed,
one can reasonably conclude that no civil penalty assessment will
be forthcoming, and the respondent would have no reason to
challenge it further. Further, given the fact that the mine
continued to operate for 2-1/2 shifts after the order was issued,
and since the order was immediately terminated, it did not exist
and was no longer in effect at the time the miners were idled.

 With respect to the second order (No. 2943583), the

inspector confirmed that he issued it because he believed that
the cited conditions constituted a violation of mandatory
standard 30 C.F.R. 75.1002, independent of any reference to the
pending modification petition. Although the record reflects that
the order was subsequently terminated on February 10, 1988, upon
approval of the modification petition, it was still outstanding
and in effect when the miners were idled, and there is no
evidence that MSHA has ever vacated it. The respondent's
suggestion that the approval of the modification petition has
resulted in a de facto vacation of the order is rejected. If the
respondent believed that this was the case, it was incumbent on
the respondent to present credible and probative evidence or
facts to support such a conclusion, and none were forthcoming
during the course of the hearing. I find nothing in the record to
support any conclusion that MSHA ever vacated the order or made
any finding that no violation ever existed. Although an MSHA
inspector terminated the order, and "justified" it by a reference
to the fact that the modification petition had been granted, he
was not the same inspector who issued the order and violation,
and the issuing inspector's credible testimony that a violation
had occurred and that he cited a violation of section 75.1002
independently of the modification petition stands unrebutted. I
take note of the respondent's further suggestion that assuming
the order

Page 23

~552
were de facto vacated, the Commission could proceed to adjudicate
the compensation claim.

 The respondent's reliance on the Quinland Coals decision as

the basis for its argument that the Commission lacks jurisdiction
to decide the compensation claim because it has not been afforded
its full rights to contest the order in any civil penalty
proceeding IS REJECTED. In my view, the Quinland Coals decision
simply expanded the appeal rights afforded a mine operator to
challenge the validity of special findings made by an inspector
in a contested order. The Commission rejected a restrictive
interpretation of the review provisions of section 105 of the
Act, and concluded that since a special finding was a critical
consideration in evaluating the nature of an alleged violation
and its impact upon the appropriate civil penalty to be assessed,
an operator should have an opportunity to seek review of an order
in any subsequent civil penalty proceeding pursuant to section
105(a) of the Act, notwithstanding the fact that it failed to
seek review pursuant to section 105(d). The focus of the
Commission's decision in Quinland Coals was on the
interrelationship between a contest proceeding and a civil
penalty proceeding, and not on section 111 of the Act.

 On the facts of this case, I believe it would be unjust to

deny the miners an opportunity to have their compensation claims
adjudicated because of MSHA's reluctance to initiate a civil
penalty proceeding which may afford the respondent a forum to
litigate the validity of the order or the fact of violation. The
respondent's liability for the compensation claims are to be
adjudicated pursuant to the remedial purposes of section 111, and
not the punitive enforcement statutory and regulatory schemes
connected with the issuance of citations, orders, and civil
penalty assessments. Further, the fact that a withdrawal order is
subsequently vacated does not deprive miners of their right to
compensation, CF&I Steel Corp. v. Morton, 516 F.2d 868 (10th Cir.
1975).

 Section 111 is remedial in nature and was not intended by

Congress to be interpreted and applied narrowly. Local Union
1889, District 17, UMWA v. Westmoreland Coal Company, 8 FMSHRC
1317 (September 1986). In a recently decided compensation case
before the United States Court of Appeals for the District of
Columbia Circuit, International Union, UMWA v. FMSHRC, 840 F.2d
77, 82 (D.C. Cir. 1988), the court observed that the legislative
history of section 111 makes it clear that its purpose was to
make miners whole for wages lost due to a closure order or for
wages lost through no fault of their own. The court pointed out
that section 111 was not intended to be a part of the Act's civil
penalty assessment scheme, and

Page 24

~553
that the statutory language accords the Secretary (MSHA) no role
in determining section 111 liability. The court further concluded
that section 111 is self-executing, and that once a section
104(d)(2) order based on a violation of a mandatory health or
safety standard is issued and causes the miners to be idled, the
miners have a right to seek compensation, and that such a right
may be vindicated through recourse to the Commission.

 In this case, the issuance of the unwarrantable failure

orders came about through no fault of the miners. Both orders
were issued because of the conduct of the respondent in
energizing the longwall section and exposing the area to certain
conditions which the inspector believed were in violation of
mandatory section 75.1200 and/or contrary to the modification
petition which had not been granted at the time of the inspection
which prompted the action taken by the inspector. Further, MSHA's
inaction in failing to initiate a civil penalty proceeding
likewise came about through no fault of the miners.

 On the facts of this case, and in light of the foregoing

findings and conclusions, I conclude and find that for purposes
of the instant section 111 proceeding, the orders in question
have become final, and that I have jurisdiction to adjudicate the
compensation claims.

The Nexus Issue

 The prerequisites for entitlement to compensation for

section 104 orders which result in the idling of miners are found
in section 111 of the Act, and the conditions precedent for the
awarding of compensation is that the mine is idled by the
issuance of an order which cites a violation. In short, section
111 of the Act creates a graduated scheme of compensation ranging
from the limited shift compensation described in the first two
sentences, to the more generous 1-week compensation provided by
the third sentence, all of which are dependent on the mine
operator's conduct relating to the conditions in the mine. Shift
compensation is awardable for an idlement attributable to an
order issued under section 104 of the Act, and up to 1-weeks's
compensation is available if the idlement is attributable to a
section 104(d)(2) order issued for an unwarrantable failure by
the operator to comply with a cited mandatory standard,
Westmoreland Coal Company, supra, 9 FMSHRC 1325.

 In order to establish its claim to compensation, the UMWA

must establish that a nexus existed between the orders and the

Page 25

~554
idling of the miners. As stated by the Commission in Local Union
No. 781, District 17, UMWA v. Eastern Associated Coal Corp., 3
FMSHRC 1175, 1178:

      [S]ection 111 compensation is awardable only if there
      is a nexus between a designated withdrawal order and
      the miners' idlement and loss of pay, or between the
      underlying reasons for the idlement and pay loss and
      the reasons for the order. Mere occurrence alone of
      withdrawal or idlement and issuance of an order does
      not, by itself, justify compensation . . . . Where an
      order precedes and plainly causes a withdrawal leading
      to loss of pay, compensation ordinarily will be
      awarded; conversely, . . . where the order has nothing
      to do with the withdrawal . . . compensation will not
      be awarded. However, withdrawal situations can arise
      involving more complicated sequences of events or
      concurrent operation of causative factors. In resolving
      the latter class of cases, we think it wiser to develop
      the nexus rule on a case-by-case basis. In such cases,
      we will examine the relationship between the underlying
      reasons for the withdrawal and for the order, and will
      give balanced consideration both to the limited and
      purely compensatory character of section 111 and to the
      overall safety purposes of the 1977 Mine Act and
      section 111 itself. (Emphasis added).

 It is well-settled that the voluntary closure of a mine by

an operator, and the withdrawal of miners prior to the issuance
of an order does not preclude the miners from receiving
compensation based on the order. UMWA, District 31 v. Clinchfield
Coal Company, 1 MSHC 1010 (1971); Mine Workers, Local 2244 v.
Consolidation Coal Company, 1 MSHC 1674 (1978); Mine Workers,
Local 1993 v. Consolidation Coal Company, 1 MSHC 1668 (1978).

 In the Clinchfield Coal Company case, supra, in rejecting

the operator's contention that its voluntary closure of the mine
prior to the issuance of the closure order preempted the order,
the former Interior Board of Mine Operations Appeals noted that a
withdrawal order is more extensive in scope than a voluntary
withdrawal of miners by the operator, in that it prohibits
reentry until the Secretary determines that the danger no longer
exists, and the mine or particular section thereof is officially
closed upon the issuance of an order,

Page 26

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and the effected miners are officially idled by such an order.
See also: Mine Workers, Local 1993 v. Consolidation Coal Company,
supra, where Judge Broderick followed the Clinchfield Coal
Company decision in concluding that the mine operator's voluntary
closure of the mine in advance of the issuance of the order was
strongly motivated by the increasing probability that a closure
order would be issued. The instant case presents a unique
situation in that the orders issued by the inspector did not
directly order any withdrawal of miners or the closing of the
mine, and the miners continued to work for 2-1/2 shifts after the
orders were issued until the mine superintendent subsequently
closed the mine.

Order No. 2943582

 Inspector Kalich issued Order No. 2943582, at 6:25 p.m., on

February 8, and terminated it at 7:35 p.m. that same day after
the respondent installed a ground check circuit overtemperature
device. The inspector subsequently vacated the order on February
10, on the instructions of his supervisor who advised him that he
could not support a violation based on a pending modification
petition. During the course of the hearing, the UMWA's
representative asserted that the inspector "messed up" when he
issued the order (Tr. 102).

 While it is true that a subsequently vacated order may not

deny miners their right to claim compensation, in this instance
the mine continued to operate for two and one-half shifts after
the order was terminated, all of the miners continued to work,
and no one was ordered to be withdrawn or idled. Further, the
inspector conceded that the cited condition did not constitute a
violation of the cited mandatory safety standard, section
75.1002, and any possible hazard to which the miners assigned to
the longwall panel may have been exposed was effectively
eliminated when the respondent took immediate action to install
the overtemperature device as required by the inspector. In
addition, at the time of the subsequent idlement of the entire
mine by the mine superintendent on February 9, the order was no
longer in effect or in existence. Under all of these
circumstances, I cannot conclude that any nexus has been
established between Order No. 2943582, and the idlement of the
miners on February 9, 1988.

Order No. 2943583

 Section 111 of the Act provides for compensation for miners

when a mine or mine area is closed by a section 104

Page 27

~556
order. The evidence in this case establishes that the inspector
did not order the closure of the entire mine or the longwall area
of the mine, nor did he order the withdrawal of any miners. The
parties have stipulated that the mine continued to operate for
2-1/2 shifts after the order was issued until it was idled by
superintendent Toth on February 9. Superintendent Toth's
unrebutted and credible testimony establishes that
notwithstanding the unavailability of power on the longwall
panel, all miners assigned to the longwall were kept working, and
the UMWA agreed that all mine shifts continued to work without
interruption for 2-1/2 shifts after the order issued, and that
the miners assigned to the longwall continued doing "dead work"
(Tr. 92).

 During the course of oral argument on the record, the UMWA's

representative asserted that as a result of Inspector Kalich's
order, some miners were idled from work (Tr. 33). When asked to
identify these miners, she confirmed that they were the miners
listed on "Exhibit F" to the prehearing Joint Stipulation of
facts which were filed and received on October 11, 1988, "which
we've all agreed to" (Tr. 34). The list contains the names of 432
individuals assigned to work in the plant and the mine from
February 9, through February 10, 1988. Eleven (11) of those
listed were assigned to the longwall on February 9, 1988 (Tr.
88). Having reviewed the stipulation, and contrary to any
inference by the UMWA's representative that the parties
stipulated that the miners listed were idled by the order, my
conclusion is that the parties stipulated that these miners were
idled from 8:00 p.m., on February 9, 1988 to midnight February
10, 1988, as a result of Mr. Toth's decision to idle the mine,
rather than the order issued by the inspector.

 Superintendent Toth testified that the mine is equipped to

operate one longwall installation, and four belt and continuous
miner sections, and that in order to maintain its profitability,
12,000 to 14,000 tons of coal a day must be produced (Tr. 49). He
confirmed that by January 28, 1988, one longwall panel had been
completed and ready for production, but that no coal could be
produced because the pending modification petition had not as yet
been approved. However, work continued, and extra manpower was
used to extend the panel an additional 300 feet in anticipation
of the approval of the petition (Tr. 51). He confirmed that
during this time, production levels were at "50 percent
efficiency," and that on February 3, in view of safety
considerations, further coal production ceased on the longwall,
and from February 3 to February 9, when he idled the mine, there
was no further longwall production (Tr. 52). Referring to his
longwall coal production records,

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~557
Mr. Toth confirmed that from January 29 to February 3, coal
production was reduced by 70,000 tons a day, and that from
February 3, until February 9, production was reduced by 40,000
tons a day (Tr. 55). He also confirmed that the four continuous
miner sections accounted for 25 percent of total coal production
(Tr. 86).

 Mr. Toth confirmed that from February 3, until the afternoon

shift of February 9, no miners were idled, and "preparation and
setup" work continued on the longwall, as well as in all of the
other available developments (Tr. 56). He confirmed that those
longwall miners who were subsequently idled by his decision to
idle the mine were involved in the "set-up and adjustment work"
which was going on (Tr. 80). Mr. Toth explained that the high
voltage power was on the longwall panel in question on February
8, in order to make necessary adjustments to the power cables and
"trim passes" in anticipation of starting up the longwall once
the petition was granted, but that he had no intention of
starting any coal production on the panel without the petition
being granted (Tr. 57-58; 62). Mr. Toth also confirmed that the
power was also on the longwall panel on February 4 and 5, even
though the modification petition was still pending, and he
explained that it was on while MSHA inspectors were present
evaluating the modification petition (Tr. 65-66).

 The petition of modification in question was filed to permit

the respondent to use high voltage power on the longwall panel.
When the order was issued, the petition had not been granted, and
the use of high voltage power was not permitted. Inspector Kalich
testified that while this was true, he issued the order because
he believed the use of high voltage cables on the longwall was a
violation of mandatory safety standard section 75.1002,
independent of the then pending petition. The merits of the
alleged violation were not litigated in this compensation
proceeding, and the parties differ as to whether or not the cited
conditions constituted a violation of section 75.1002 (Tr. 103,
106-107). The UMWA takes the position that the failure by the
respondent to timely contest the alleged violation constitutes a
tacit admission of a violation. This contention is rejected. I
find no basis for such a conclusion, and given the Commission's
decision in the Quinland Coals, Inc., case, supra, I believe that
the respondent's belief that it could still litigate the merits
of the alleged violation in any subsequently filed civil penalty
proceeding, notwithstanding its failure to timely contest the
violation, is reasonable and plausible.

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Aside from the merits of the alleged violation, and from a safety
point of view, the decision by the respondent to introduce high
voltage on the longwall without approval by MSHA, exposed the
miners assigned to the longwall to a potential hazard. Indeed,
the inspector who issued the order believed that the use of high
voltage cables on the longwall was contrary to mandatory safety
standard 75.1200, and he concluded that the alleged violation was
"significant and substantial" and presented a reasonable
likelihood of an injury.

 The parties do not dispute the fact that while the order did

not directly require the withdrawal of any miners or the closure
of the longwall area of the mine, it did result in the shut down
of the 2400 volt power circuits supplying power to the longwall
area. In the absence of available power, normal longwall
production could not continue, and miners normally assigned to
their normal longwall production duties could not continue
performing those duties and were assigned "dead work." Any
attempt by the respondent to continue full production on the
longwall with use of high voltage power in defiance of the order
would have placed the respondent at risk to pay the increased
compensation to the affected miners working in the longwall area
as provided for in the fourth sentence of Section 111. Thus, the
net effect of the order was to curtail further coal production in
the longwall area. Under all of these circumstances, including
the fact that the order was still in effect and had not been
terminated or vacated at the time superintendent Toth decided to
idle the entire mine on February 9, I conclude and find that a
causal relationship did exist between the order and the idling of
the longwall area, and that the proximate and primary cause of
the idling of that area was the order issued by the inspector.

 I conclude and find that the evidence in this case

establishes a reasonable nexus between the order and the idling
of the longwall area, notwithstanding the respondent's "economic
considerations" arguments to the contrary. Accordingly, I further
conclude and find that the miners normally assigned full
production work duties on the 14 Right 3 South Longwall Section,
and who would have continued performing these duties but for the
issuance of the order in question, are entitled to be compensated
for the time the longwall area was idle from 8:00 p.m. on
February 9, to midnight February 10, 1988.

 With regard to the mine areas other than the longwall, while

it is true that the order affecting the longwall was still
outstanding and in effect when superintendent Toth

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~559
decided to idle the entire mine on February 9, the facts
establish, and the UMWA concedes, that the continuous mining
sections continued to operate for 2-1/2 shifts after the order
was issued. Miners continued to work in these areas, and coal
production continued, albeit at reduced efficiency, but still
unaffected by the order. Unlike the longwall area, where coal
production was substantially reduced because of the
unavail-ability of high voltage power which came about as a
result of the order, the continuing mining sections continued to
operate for 2-1/2 shifts, and no miners were idled.

 With regard to any safety connection between the order and

the remaining mine areas other than the longwall, the evidence
establishes that any potential hazards to miners through exposure
to the cited high voltage cables was limited to the longwall
area, and I find no evidence to support any conclusion that any
of the miners who continued to work in these other mine areas
were at risk or exposed to any potential hazard because of the
alleged violation which prompted the inspector to issue the order
on the longwall.

 Although I have concluded that the order issued on the

longwall was safety related, and that a reasonable nexus has been
established between the order and the idling of the longwall area
of the mine, I cannot reach the same conclusion with respect to
the remaining mine areas which were unaffected by the order. On
the facts of this case, I conclude that the respondent has made a
credible, plausible, and reasonable showing with respect to the
adverse economic impact on the mine which resulted from its
failure to gain timely approval of its modification petition.

 The evidence in this case establishes that the adverse

economic impact on the continued viable operation of the mine as
a result of the respondent's failure to obtain timely approval of
its longwall modification petition was clearly communicated to
the union well in advance of the issuance of the order, and it
came to fruition at a time when the respondent was attempting to
continue mining by extending the longwall in anticipation of
MSHA's approval of the petition, which the respondent believed
was imminent, and at a time when there was little or no ongoing
production on the longwall, even before the order was issued.

 While it is true that the respondent precipitated the

issuance of the order by advancing high voltage cables into the
longwall area, given the remedial nature of section 111 of the
Act, and the fact that no miners working in areas other than the
longwall were exposed to any hazard as a result of

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~560
the alleged violation, and notwithstanding the fact that the
order was still in effect at the time Mr. Toth decided to idle
the entire mine on February 9, I conclude and find that the order
was incidental to, and not the immediate cause of the idling of
the rest of the mine by Mr. Toth. To the contrary, I conclude and
find that Mr. Toth's decision to idle the mine was primarily the
result of his managerial decision that he could not continue to
economically operate the mine, and his obvious frustration and
aggravation over the failure to gain timely approval of the then
pending modification petition.

 The respondent's credible evidence clearly supports its

contention that for a period of approximately 1-month prior to
the issuance of the order on February 8, and Mr. Toth's decision
of February 9, to idle the entire mine, representatives of the
UMWA were on notice by the respondent that drastic workforce
reductions were inevitable in the event the pending modification
petition was not timely approved by MSHA. Respondent's credible
evidence also establishes that at the time the longwall panel in
question was mined out approximately 2 weeks before the order was
issued, coal production on the longwall showed a marked decrease.
The reasons for this was the fact that all of the longwall coal
had been mined up that point, and the respondent had not as yet
had approval from MSHA to introduce high voltage on the panel
which would have allowed it to continue mining at a high
production capacity. Notwithstanding these factors, the
respondent decided to extend the panel an additional 300 feet in
anticipation of the approval of its petition, and miners were
kept working at reduced productivity levels until superintendent
Toth decided that he could no longer justify operating the mine
with a full employment complement in the face of decreased
production and the lack of high voltage capability on the
longwall.

 Under all of the aforementioned circumstances, I cannot

conclude that a reasonable nexus existed between the issuance of
the order and Mr. Toth's decision to idle the entire mine.
Accordingly, I further conclude and find that those miners
assigned to and working in mine areas other than the longwall
area are not entitled to any compensation as a result of Mr.
Toth's idlement of the mine.

                         ORDER

 In view of the forgoing findings and conclusions, IT IS

ORDERED THAT:

 1. The affected miners assigned to the 14 Right 3 South

Longwall Section of the mine as of February 9, 1988, as shown

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in Exhibit "F" to the Joint Stipulation of Facts filed by the
parties in this proceeding, are entitled to compensation at their
regular rates of pay for wages lost during the idlement of the
mine, from 8:00 p.m. on February 9, 1988 to midnight February 10,
1988, with interest computed from February 9, 1988, until the
date payment is made, and to this extent the compensation claims
filed in this proceeding ARE GRANTED.

 All interest due with respect to the claims which have been

allowed shall be calculated in accordance with the Commission's
decision in Arkansas-Carbona, 5 FMSHRC 2042 (December 1983), as
modified by Local Union 2274, District 28, UMWA v. Clinchfield
Coal Company, 10 FMSHRC 1493 (November 1988). See: 54 Fed. Reg.
2226-2227, January 19, 1989.

 2. All other miners working in areas other than the 14 Right

3 South Longwall Section of the mine during the aforementioned
idlement period of the mine are not entitled to compensation, and
to this extent, the compensation claims filed in this proceeding
ARE DENIED.

 3. Within twenty (20) days of the date of this decision, and

without prejudice to the right of the parties to seek further
review of this decision, the parties shall confer in an effort to
stipulate to the amounts of compensation and interest due the
aforementioned longwall miners, and within ten (10) days
thereafter, the parties shall file their joint stipulation or
agreement in this regard with me so that a supplemental decision
and final order may be entered.

 4. The UMWA's request for payment of attorney's fees IS

DENIED. Section 111 of the Act does not provide for an award of
attorney's fees and costs in compensation proceedings. See: Local
Union 2274, District 28, United Mine Workers of America v.
Clinchfield Coal Company, 10 FMSHRC 1493, 1499 (November 1988),
and the cases cited therein.

 5. This decision shall not be made final until the parties

have submitted their joint stipulation and agreement, and a
supplemental decision and final order is issued.

                          George A. Koutras
                          Administrative Law Judge