<DOC>
[DOCID: f:se2002-22o.wais]
JIM WALTER RESOURCES INC.
Docket No. SE 2002-22-C
July 5, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 5, 2002
UMWA, LOCAL 2368, : COMPENSATION PROCEEDING
DISTRICT 20, on behalf of miners, :
Applicant : Docket No. SE 2002-22-C
:
v. :
:
JIM WALTER RESOURCES INC., : No. 5 Mine
Respondent : Mine ID 01-01322
ORDER DENYING MOTION FOR SUMMARY DECISION
This case is before me upon a Complaint for Compensation filed by
the United Mine Workers of America Local 2368, District 20 (UMWA),
pursuant to Section 111 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 801, et seq. (1994), the "Act,"seeking compensation
from Jim Walter Resources, Inc. (JWR) for miners idled following
several explosions at JWR's No. 5 Mine on September 23, 2001.
It is undisputed that on September 23, 2001, at approximately
5:30 p.m., a portion of the roof in the No. 4 section at JWR's No. 5
Mine fell, followed by an explosion resulting in injuries. At
approximately 6:15 p.m., a second, larger explosion occurred and all
miners who had not already been told to do so were told to evacuate
the mine. It is also undisputed that at around 6:05 p.m. on September
23, 2001, a mine employee notified Department of Labor, Mine Safety
and Health Administration (MSHA) field supervisor Charles Terry
Langley of the explosion at the No. 5 mine. Langley then called the
mine and spoke with Harry House, a salaried JWR employee, who
confirmed the explosion. Subsequently four MSHA inspectors traveled
to the mine. Upon arriving at the mine around 7:15 p.m., they spoke
to Dale Byram, another JWR salaried employee, and the mine rescue
team. They then proceeded to the mine office.
By 7 p.m., mine manager Jesse Cooley and other JWR management
decided to close the mine and notify all miners on subsequent shifts
that the mine would be closed until further notice. Beginning at 7:30
p.m., JWR officials notified miners scheduled to work on subsequent
shifts that the mine would be closed until further notice. At 8:15
p.m., MSHA Inspector Edward Nicholson, issued Order No. 7676787,
pursuant to Section 103(k) of the Act. The order stated that "a non-
fatal, injury explosion has occurred on the No. 4 Section, this being
issued to protect the miners, until and [sic] investigation is
completed." The order was modified at 8:58 p.m., extending it to the
entire No. 5 mine. The order was terminated on June 11, 2002. It is
undisputed that at least one "owl shift" miner, John Wallace, was not
contacted about the mine closure until approximately 8:30 p.m.
In its motion for summary decision, JWR argues that it is
entitled to a summary decision based on the undisputed facts and the
Commission's decision in Local Union 1261, District 22, UMWA v.
Consolidation Coal, 11 FMSHRC 1609, (September 1989), aff'd 917 F.2d
42 (D.C. Cir. 1990). Section 111 of the Act provides that if a mine
is "closed by an order issued under Section 103 . . . [and] such order
is not terminated prior to the next working shift, all workers on that
shift who were idled by such order shall be entitled to full
compensation . . . but for not more than four hours of such shift."
In the Local Union 1261 case the Commission held however that since
the mine operator in that case had voluntarily withdrawn all miners
for their safety before the issuance of the withdrawal order and since
the operator advised miners on later shifts that the mine was "idle
until further notice" none of those for whom compensation was claimed
were on "the next working shift." The Commission accordingly held that
the miners in that case were not entitled to compensation. Local
Union 1261, 1614 n. 6.
The rationale for this holding was stated by the Commission
therein as follows:
Here, the record shows immediate action on the part of a
mine operator to remove all afternoon shift employees from the
mine because of rising gas levels -- clearly a threat to the
health and safety of the miners. The wisdom of this action was
attested by the action of MSHA inspectors who, after being
summoned by the operator, issued a control order on the following
morning, officially closing the mine and thereby confirming the
evacuation order issued during the previous evening by the mine
operator. Thus, apart from the fact that no miners were present
in the mine when MSHA closure order was issued, it is apparent
that the safety first edict of section 2 was observed
conscientiously by the mine operator here and that it would be a
departure from the clear intent and purpose of the mine Act to
penalize the operator for voluntarily idling miners for their own
protection. To impose such liability could conceivably encourage
less conscientious operators in similar circumstances to continue
production, at risk to the miners, until the MSHA inspectors
arrived to issue a control order idling the miners. We do not
believe that the Mine Act was intended to stifle such safety
conscious actions by operators, as Consol took here.
The Commission noted in Local Union 1261 however, that the case
did not involve an attempt to avoid Section 111 liability by
withdrawing miners in anticipation of withdrawal action by the
Secretary, suggesting a different result if that were the case.
In its response to JWR's Motion for Summary Decision, the UMWA
argues that the closure of the mine by JWR was only an attempt to
avoid Section 111 liability by withdrawing miners in anticipation of
withdrawal action by the Secretary, and that, therefore, the
Commission decision in Local Union 1261 is inapplicable to this case.
The UMWA further argues that a factual dispute remains therefore as to
whether JWR withdrew the miners only to avoid Section 111 liability in
anticipation of withdrawal action by the Secretary or whether it was
done for the protection of the miners consistent with the Commission's
decision in Local Union 1261. I agree that such a factual dispute
exists requiring evidentiary hearings and credibility determinations
to resolve these issues.
Under Commission Rule 67, 29 C.F.R. � 2700.67, a motion for
summary decision shall be granted only if the entire record including
the pleadings, depositions, answers to interrogatories, admissions and
affidavits, shows: (1) that there is no genuine issue as to any
material facts; and (2) that the moving party is entitled to summary
decision as a matter of law.
Under the circumstances herein, in light of the factual issue
remaining in dispute, the motion for summary decision must be denied.
Commission Rule 67, 29 C.F.R. � 2700.67.
ORDER
The Motion for Summary Decision filed by Jim Walter Resources on
May 31, 2002, is denied.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution: (Certified Mail)
Joyce Hanula, Esq., United Mine Workers of America, 8315 Lee Highway,
Fairfax, VA 22031
David M. Smith, Esq., William L. Campbell, Jr., Esq., Maynard, Cooper
& Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,
Birmingham, AL 35203
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