<DOC>
[DOCID: f:va9979.wais]
ISLAND CREEK COAL COMPANY
October 6, 1999
VA 99-79-C
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 6, 1999
UNITED MINE WORKERS OF AMERICA, : CIVIL PENALTY PROCEEDING
LOCAL UNION 2232, DISTRICT 20, :
on behalf of MINERS, : Docket No. VA 99-79-C
Applicants, :
v. : VP No. 8 Mine
: Mine ID 44-03795
ISLAND CREEK COAL COMPANY, :
Respondent :
DECISION
Appearances: Max Kennedy, International Representative, United
Mine Workers of America, Castlewood, Virginia, for
the Applicants;
Elizabeth S. Chamberlin, Esq., Consol, Inc.,
Pittsburgh, Pennsylvania, for the Respondent.
Before: Judge Weisberger
Statement of the Case
This case is before me based upon a Complaint for
Compensation filed by the United Mine Workers of America
("UMWA"), pursuant to section 111 of the Federal Mine Safety and
Health Act of 1977 ("the Act") seeking compensation due certain
miners employed by Island Creek Coal Company ("Island Creek") on
the ground that they were withdrawn from Island Creek's VP8 Mine
pursuant to a section 107(a) Withdrawal Order issued on
December 2, 1998. The case was heard in Kingsport, Tennessee, on
June 24, 1999. On September 22, 1999, the Respondent filed a
Post Hearing Brief. On September 24, 1999, the Applicants filed
a Post Hearing Brief.
I. Findings of Fact
On December 2, 1998, David Fowler, an MSHA inspector,
accompanied by Billy Eugene Shelton, a miner employed by Island
Creek who was a union walk-around, and Michael Canada, Island
Creek's mine safety inspector, inspected the three south entries,
in Island Creek's VP8 Mine, an underground coal mine. Fowler,
along with Canada and Shelton, proceeded to walk south down the
No. 1 entry of the three north mains area. Fowler and Canada had
digital methane detectors with them. Before they reached the No.
1 west development area, Fowler's methane detector indicated a
reading of 2.1 percent, and Canada's detector indicated
1.8 percent. Fowler told Canada that he would issue a citation
if it would subsequently be determined that his detector was
accurate.[1]
Since Fowler's digital methane detector had revealed
elevated methane, the inspecting party proceeded to walk further
south down the entry to investigate the source of the methane,
and the areas affected in order to eliminate this hazard. In the
area of the No. 1 entry east of the No. 19 seal, Fowler and
Canada took additional methane readings with their digital
detectors. Fowler's detector indicated a reading of 4.5
percent.[2] Fowler told Shelton to bring him his Riken methane
detector which is more accurate than the digital detectors Fowler
and Canada had been using. Canada than told Fowler that he would
have to pull his people based on Virginia law, if the Riken
detector would indicate methane of 4.5 percent. Fowler
determined to continue his investigation.
At approximately 11:30 a.m., Shelton returned with the Riken
detector which revealed a methane reading of 4.5 percent in the
No. 2 development area. Canada left Fowler and Shelton to call
the mine dispatcher. Canada told the latter to get everyone out
of the mine due to elevated methane.
Fowler and Shelton then continued south down the No. 1 entry
to investigate further. Elevated methane readings up to
10 percent were observed in the Nos. 4 and 5 development areas.
In addition, plaster sealing the Nos. 4 and 5 development areas
from the gob area was no longer intact, evidencing the presence
of methane.
At approximately 12:00 n., Canada rejoined Fowler in the No.
4 development area where methane in the range of 8 to 9 percent
was detected. Fowler told Canada that a section 107(a) order
would be issued because ". . . [h]e knew what area was involved,
how much methane was involved, and was sure of the origination"(
Tr. 69). According to Fowler, he asked Canada or another
management official "to remove the men from underground"
(Tr. 73). According to Canada, Fowler never told him to withdraw
any miners, nor did he discuss the scope of the 107(a) order, or
whether it required the withdrawal of anyone from the mine. In
this connection, on cross-examination, Fowler agreed that it is
possible that he told Canada that he was not considering a 107(a)
order because the men had already been withdrawn.
**FOOTNOTES**
[1]: At 12:12 p.m., Fowler issued a section 104(a)
citation, No. 7297958, alleging a violation of 30 C.F.R.,
� 75.323(e), which was subsequently vacated.
[2]: Canada's detector indicated a methane level a few
tenths less than indicated on Fowler's detector. It was stip-
ulated that the 107(a) order was issued at 12:12 p.m. Fowler
explained that it was then that he determined that the miners
should be withdrawn. The order, that Fowler reduced to writing
when he exited the mine, contains Fowler's description of the
conditions warranting the issuance of the order. In paragraph
15 of the order, under the hearing Area or Equipment, Fowler
set forth as follows: "5 Dev. and 4 Dev." There are no other
words used in the order to describe the area of the mine
subject to the order i.e., the area from which miners were
ordered to be withdrawn.[3]
Sometime after 1:00 p.m., after the order was issued, Fowler
met some rank and file miners at the B shaft, and told them to go
outside. Fowler informed Terry Suder, the mine's superintendent,
that he needed to make sure to get everyone out of the mine. It
was stipulated that the first miners exited the mine at
approximately 1:30 p.m.
II. Section 111 of the Act
The Applicants' right to compensation is predicated upon
section 111 of the Act, which, as pertinent, provides as follows:
If a coal or other mine or area of such mine is
closed by an order issued under . . . 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 results of any review of such order,
to full compensation by the operator at their regular
rates of pay for the period they are idled, but for not
more than the balance of such shift.
III. Discussion
The present controlling authority for the issues at bar is
Local Union 1261, District 22, UMWA v. Consolidation Coal
Company, 11 FMSHRC 1609 (1989), Aff'd sub nom. Local Union 1261
v. FMSHRC, 917 F.2d 42 (D.C. Cir. 1990). As in the case at bar,
the issue therein was whether miners are entitled to compensation
under the first and second sentences of section 111 when the mine
operator has voluntarily closed the mine for safety reasons prior
to the issuance of an order described in section 111, but where
such an order is subsequently issued.
**FOOTNOTES**
[3]: In paragraph 10 of the order, Gravity, subparagraph D,
The Number of Persons Affected, Fowler set forth as follows
"060." Fowler explained in his testimony that he thought at the
time that there were 60 miners underground. On its face, the
number of persons affected relates to the gravity of the
violative conditions, rather than being a specific designation of
the area of the mine being subject to an order of withdrawal.
The Commission in that case, at 11 FMSHRC 1613-1614, held as
follows:
The meaning of the first two sentences of section
111 is clear. If a specified withdrawal order has been
issued, "all miners working during the shift when such
order was issued who are idled by such order" are
entitled to compensation for the remainder of their
shift. (Emphasis added.) If the order is not
terminated prior to "the next working shift, all miners
on that shift who are idled by such order" are entitled
to compensation for up to four hours. (Emphasis
added.) The language is in nowise qualified. Thus, to
be entitled to shift compensation, a miner must either
be working during the shift when the specified order
was issued and have been idled by the order or, if the
order is not terminated prior to the next working
shift, must be on the next working shift.
Here, the preconditions for entitlement to shift
compensation were not met. At the time the order was
issued, no miners were working nor had they been since
the previous evening at which time Consol had
voluntarily withdrawn all miners in order to guarantee
their safety. Therefore, none of those for whom
compensation is claimed were "working during the shift
when . . . [the] order was issued." Further, Consol
advised miners on the other two shifts that "the mine
is idled until further notice." [Citation omitted.]
Therefore, none of those for whom compensation is
claimed were on "the next working shift." (Emphasis
added.) [Footnote omitted.] We therefore hold that the
claimants, not having met these plainly stated
prerequisites, were not eligible to be compensated.
The court of Appeals, on review, held that the Commission's
interpretation limiting the phrase "working during the shift," to
miners actually working when the order is issued, was a
reasonable interpretation. Local Union 1261, 917 F.2d at 47.
The Commission majority explained the rationale for its
decision as follows:
Apart from the plain wording of the statute, there
are also practical considerations. A statute should
not be construed in a way that is foreign to common
sense or its legislative purpose. Sutherland Statutory
Construction �� 45.09, 45.12 (4th ed. 1985). As
discussed, the Mine Act involves a balancing of the
interest of mine operators, and miners, with safety
being the preeminent concern. Section 2 of the Mine
Act specifies at the outset that "the first priority
and concern of all in the coal or other mining industry
must be the health and safety of its most precious
resource -- the miner," and section 2(e) adds that "the
operators of such mines with the assistance of the
miners have the primary responsibility to prevent the
existence of [unsafe and unhealthful] conditions and
practices in such mines." The Mine Act was not
intended to remove from an
operator the right to withdraw miners from a mine for
safety reasons. While MSHA has the authority to order
such withdrawal, it does not have that power
exclusively.
* * * * *
The purpose and scope of shift compensation can
also be determined by another important concern
expressed by Congress in adopting section 111 in its
specific terms: insulating the mine inspector from any
repercussions that might arise from his withdrawing
miners and temporarily depriving them of their
livelihood. A key passage from the Report of the
Senate Committee setting forth the rationale for the
miners' compensation provision concludes by stating,
"[t]his provision will also remove any possible
inhibition of the inspector in the issuance of closure
orders." Leg. Hist. At 635. This convinces us that
Congress intended shift compensation rights to arise
only when the physical removal of miners is effectuated
by the inspector himself so that the inspector in
carrying out his enforcement duties is not inhibited or
distracted by workplace considerations wholly
extraneous to the protection of miners.
11 FMSHRC at 1614-15
In the case at bar, the sequence of events is basically not
at issue. I find that at approximately 11:30 a.m., Canada told
the dispatcher to get everyone out of the mine due to elevated
methane. Thus, when Fowler issued the section 107(a) order, an
order had already been given by Consol withdrawing the miners.
Under the holding and rationale of Local Union, supra, the
removal of the miners previously ordered to be withdrawn by
Canada, was not effectuated by Fowler's order. These miners were
no longer "working" when Fowler issued the 107(a) order, and are
not entitled to compensation under section 111, supra.
Applicants argue, however that the instant case is
distinguishable from Local Union, supra, in that here, Consol
attempted to avoid section 111 liability by withdrawing miners in
anticipation of withdrawal action by MSHA. The Commission in
Local Union, supra, appeared to suggest that this might be a
possible distinguishing factor. See Local Union 1261, fn6 at
pp. 1614-1615. However, this suggestion by the Commission is
clearly dictum as it was not necessary for a disposition of the
issues presented therein. Nor is there any authority that would
compel a ruling that where an operator withdraws miners in
anticipation of the issuance of a 107(a) order, the withdrawn
miners are entitled to section 111 compensation where the
107(a) order is subsequently issued.
Moreover, such a broad ruling, if applied to a situation
where an operator might have anticipated the possibility of the
issuance of a 107(a) order, but also withdrew miners based on
safety concerns, would appear to thwart the Commission's concerns
regarding the purpose of section 111, supra. As stated by the
Commission in Local Union, supra, at 1614,
. . . it would be a departure from the clear
intent and purpose of the 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.
Further, Applicants have not established that Consol's
decision to remove miners was made in anticipation of the
issuance of a 107(a) order. When the digital detectors revealed
methane in excess of 4 percent, Canada expressed his intent to
remove miners to comply with Virginia Law, should readings in
excess of 4.5 percent be confirmed with the Riken detector. In
contrast, the only communication Fowler had made to Consol
regarding action that he was considering was his statement that
he was contemplating issuing a section 104(a) citation[4] should
the reading that he had obtained with his digital methane
detector be subsequently verified with the Riken detector. At
11:30 a.m., when the Riken testing indicated methane at
4.5 percent, Canada told Fowler that he was going to withdraw
miners, and then he (Canada) ordered their withdrawal, Fowler had
not indicated that he was even contemplating issuing a withdrawal
order, or that he had found the conditions to constitute any type
of imminent danger. Fowler's decision to issue the withdrawal
order was first made by him shortly after 12:00 p.m., only after
he had ascertained the source and extent of methane
accumulations.
For all the above reasons, I conclude that the Applicants
are not entitled to compensation under section 111 of the Act.
ORDER
It is ORDERED that this case be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Max Kennedy, International Representative, United Mine Workers of
America, District 20, Subdistrict 28, P. O. Box 28, Castlewood,
VA 24224 (Certified Mail)
Elizabeth S. Chamberlin, Esq., CONSOL Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
/dcp
**FOOTNOTES**
[4]: On direct examination, Fowler indicated that he had
told Canada or some other management official that he would be
issuing a section 107(a) order as he was sure of the origination
of the methane, and asked them to remove the men form
underground. However, on cross-examination, it was clarified
that after he had concluded that the 3, 4, and 5 development
areas were involved, i.e., after 12:00 n., he told Canada that he
would be issuing a section 107(a) order.