<DOC>
[DOCID: f:wv95262.wais]

 
CONSOLIDATION COAL COMPANY
April 3, 1996
WEVA 95-262-C


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            April 3, 1996

UNITED MINE WORKERS OF         :  COMPENSATION PROCEEDING
  AMERICA, LOCAL 1058,         :
  DIST. 31                     :  Docket No. WEVA 95-262-C
               Complainant     :
                               :
           v.                  :  Humphrey No. 7
                               :
CONSOLIDATION COAL COMPANY,    :
               Respondent      :

                               DECISION

Appearances:  Judith Rivlin, Esq., United Mine Workers of
              America, Washington, DC, for Complainant;
              Elizabeth Chamberlin, Esq., Consolidation Coal
              Company, Pittsburgh, Pennsylvania, for Respondent.

Before:  Judge Fauver

     This proceeding concerns a complaint for compensation
pursuant to the first sentence of � 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801, et seq.,
which provides:

     If a coal or other mine or area of such mine is closed by
an order issued under �� 103, 104, or 107, all miners working
during the shift when such order was issued 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 not more than the balance of such shift.

     The United Mine Workers of America on behalf of Local Union
1058, District 31, seeks compensation from Consolidation Coal
Company for miners it alleges were idled by a withdrawal order
issued by the Secretary of Labor under � 103(k) of the Act during
the dayshift on May 5, 1995.  Respondent contends that � 111 does
not apply because the miners were idled by a management decision
for economic reasons, not because of the withdrawal order.

     Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

                           FINDINGS OF FACT

     1.  Respondent's Humphrey No. 7 Mine produces coal for sales
in or substantially affecting interstate commerce.  The mine has
an elevator at each of its three portals, i.e., Bowers Portal,
Mt. Morris Portal, and Sansone Portal.  It also has a rail entry
at Maidsville Pit Mouth, where coal is transported out of the
mine.  Miners may enter or exit the mine at any of the four
locations.  However, each miner is assigned to a portal where he
or she keeps clothing and regularly enters and exits the mine.

     2.  On May 5, 1995, about 8 a.m., the day shift miners
assigned to the Bowers Portal began entering the mine.  The first
group used the elevator without incident.  When the next group
was descending, the elevator malfunctioned by speeding up,
slowing down, and creating a "falling" or "floating" effect.  A
miner pushed the emergency button, and the elevator stopped and
then returned to the surface.

     3.  Primo Zini, master mechanic, examined the elevator while
officials for Respondent contacted Millar Elevator Company, a
service company that has a monthly maintenance agreement with
Respondent.  Two Millar servicemen arrived at the mine about
9 a.m. and began trouble shooting the elevator.  About 35 day
shift miners were at the Bowers Portal.  Respondent directed them
to stand by to await repair of the elevator.  Some of the miners
may have been given odd jobs to perform while waiting for the
repair of the elevator, but all of them remained on duty while
waiting.

     4.  Based on Millar's belief that the problem would be
corrected shortly, Respondent decided to have the miners stand by
at Bowers Portal, rather than send them to another portal for
entry into the mine.

     5.  Around 10:25 a.m., believing the elevator was repaired,
Respondent directed the miners to get back on the elevator.  They
did so.  However, the elevator started down very slowly and then
would stop suddenly and speed up again, creating the same
"floating" or "falling" effect that occurred earlier in the
morning.  A miner pushed the emergency button and the elevator
came to a stop and returned to the surface.  The miners were very
concerned for their personal safety, and complained to the
chairman of their safety committee, David Laurie.  About 10:30
a.m., Mr. Laurie called Gary Asher, international safety
representative for UMWA, and informed him of the problems with
the elevator.

     6.  About 10:40 a.m., Mr. Asher called Raymond Ashe, field
supervisor with MSHA, and informed him of the problems with the
elevator.  Mr Asher stated that he would be filing a safety
complaint, and requested MSHA to issue a � 103(k) order to
prevent use of the elevator pending MSHA's investigation.  About
10:45 a.m., Mr. Asher called Respondent and issued an oral
� 103(k) order preventing anyone from entering the elevator at
the Bowers Portal until MSHA conducted an investigation.  Between
10:25 and 10:45 a.m., when the � 103(k) order was issued,
Respondent and Millar tested the elevator and on one test run
brought out miners from the midnight shift who were waiting
underground.

     7.  Before the � 103(k) order was issued, none of the union
officials, including the safety committee, and none of the day
shift miners had been informed by Respondent that the elevator
was being taken out of service.  The day shift miners were not
informed by Respondent of the status of the elevator until
shortly before noon, when Respondent decided to send the day
shift miners home.  It paid the miners 4 hours reporting pay,
pursuant to collective bargaining agreement.

     8.  Under the collective bargaining agreement, Respondent
could send miners home early, but had to pay them a minimum of 4
hours reporting time or pay them for their actual hours on duty
if greater than 4 hours.

     9.  The day shift miners who entered the mine before the
elevator's malfunction traveled to their assigned sites
underground and worked the entire shift.

     10.  While the day shift miners at the portal waited for
repair of the elevator, Respondent had the option of transporting
them to another portal for travel to their job sites.  However,
using another portal would have required a significant amount of
travel time and coordination of forces.  A commercial bus company
would be contacted to transport the miners to the other portal.
To get the miners back to their underground work sites on the
Bowers side of the mine, several track-mounted personnel carriers
from the Bowers Portal would be transported underground to the
other portal.  As a general rule, based on past experience, it
would take 2� hours from the time the decision was made to
transport the miners to an alternative portal until they arrived
at their work sites underground.  Another 2 hours would be
required to take them outside and back to their home portal by
the end of their shift.

     11.  MSHA Inspectors Ron Wyatt and Rocky Sperry arrived at
the mine around 12:50 p.m.  Following their investigation, MSHA
issued � 104(a) Citation No. 3317958 charging Respondent with a
violation of 30 C.F.R. � 50.10 for failure to immediately report
an accident to hoisting equipment.  It also issued other
citations charging Respondent with violations of several safety
standards regarding the condition of the elevator.

            DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

     The UMWA contends that the day shift miners who were sent
home at noon on May 5 were idled by the � 103(k) order, which
prohibited any personnel to enter the Bowers Portal elevator
until MSHA investigated the elevator malfunction.

     Respondent contends that its decision to send the miners
home at noon was for business reasons and not caused by MSHA's
withdrawal order.  It contends that around 11:45 a.m. it decided
that there would not be enough time to send the miners to another
portal or to wait for repair of the elevator, and therefore sent
them home by noon.  It also contends that it had removed the
elevator from service around 10:35 a.m., before MSHA's withdrawal
order at 10:45 a.m.

     The Commission has held that the application of � 111 should
not hinge on "the chance timing of an inspection and the order's
issuance rather than on the complainant's actual deprivation of
work."  Consolidation Coal Co., 11 FMSHRC 1609, 1616 (1989),
aff'd sub nom. Local Union 1261 v. FMSHRC, 917 F.2d 42
(D.C. Cir 1990).  Nor does it hinge on technical distinctions
between performing active work and waiting for a repair of
equipment to perform active work.  If miners are directed to
stand by pending repair of an elevator, they are on duty and
"working" within the meaning of � 111.

     The controlling issue is whether there is a nexus between
the withdrawal order and the miners' deprivation of work and pay.
Local 701, District 17 UMWA v. Eastern Associated Coal Co., 3
FMSHRC 1175, 1178 (1981).  This requires an examination of the
relationship between the withdrawal order issued at 10:45 a.m.
and the underlying reasons for the operator's decision to send
the miners home at noon.

     Respondent had a number of options when the elevator
malfunctioned, including: (1) to send the day shift miners home;
(2) to transport them to another portal for travel to their
underground jobs; and (3) to have them stand by at the Bowers
Portal awaiting repair of the elevator.

     Respondent chose to keep the miners at the Bowers Portal to
await the repair of the elevator.  This option ran the risk that
MSHA would be called by the union and would issue a withdrawal
order.  This was a serious risk, because the regulations required
Respondent to report any interruption of elevator service that
lasted more than 30 minutes, and Respondent had failed to report
the elevator malfunction, which exceeded 30 minutes.  The union
had the right, under � 103(g) of the Act, to report the safety
problem to MSHA and to request an immediate investigation and
withdrawal order.

     MSHA's withdrawal order, issued at 10:45 a.m.,  excluded all
personnel from the elevator, including repair workers, until MSHA
investigated the matter.  This meant that Respondent no longer
had an economically sound option to have the miners perform their
assigned underground jobs.  Instead, Respondent now had a strong
economic incentive to send them home by noon.  The reasons for
this are plain.  First, it would take time for MSHA inspectors to
come to the mine and investigate the matter to see whether they
would modify the withdrawal order to permit resumption of
troubleshooting and repair work on the elevator.  If they
modified the order, the troubleshooting and repair work would
require some indefinite period that could easily go beyond the
day shift on May 5.[1]

     Secondly, it was not economically sound to transport the
miners to another portal for travel to their underground jobs,
because this would require 4� hours travel time.

     The net result was that the withdrawal order, by stopping
troubleshooting and repair work on the elevator, had a clear
nexus with the reasons for the operator's decision to send the
miners home at noon.  Accordingly, the miners were "idled" by the
withdrawal order within the meaning of � 111 and are entitled to
compensation for the remainder of their shift on May 5, 1995.

                          CONCLUSIONS OF LAW

     1.  The judge has jurisdiction.

     2.  The day shift miners who were sent home by Respondent
on May 5, 1995, were idled by MSHA's withdrawal order within
the meaning of � 111 of the Act and are therefore entitled
to compensation for the remainder of their shift.

                                ORDER

     1.  The parties shall confer (by telephone or otherwise)
within 15 days of the date of this Decision in an effort to
stipulate the names of the idled day shift miners and the
amount of compensation due each for the remainder of their
shift on May 5, 1995, plus interest accrued since May 5,
1995.  The applicable rate of interest may be determined by
consulting the rates published by the Executive Secretary of
the Commission.  Stipulation of compensation and interest
will not prejudice the operator's right to seek review of
this Decision.

     2.  If the parties are able to stipulate the amounts of
compensation and interest, they shall file their stipulation
with the judge within 20 days of the date of this Decision.
If they are unable to stipulate, Complainant shall file a
proposed Order for Relief within 20 days of this Decision,
setting forth the names of the affected miners and the
amount of compensation and interest claimed to be due each
miner under this Decision.  Respondent shall have 10 days to
reply to the proposed order.  If issues of fact are raised,
a hearing on damages shall be scheduled.


                                 William Fauver
                                 Administrative Law Judge


Distribution:

Judith Rivlin, Esq., United Mine Workers of America, 900 15th
St., NW., Washington, DC  20005  (Certified Mail)

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Rd., Pittsburgh, PA  15241 (Certified Mail)

/lt

**FOOTNOTES**

     [1]:  In fact, the repair work was not completed until the
next day.