<DOC>
[DOCID: f:va9979cd.wais]

 
ISLAND CREEK COAL COMPANY
July 31, 2000
VA 99-79-C


             FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       1730 K STREET NW, 6TH FLOOR

                        WASHINGTON, D.C.  20006


                             July 31, 2000

UNITED MINE WORKERS OF AMERICA,    :
  LOCAL UNION 2232, DISTRICT 2O,   :
  on behalf of MINERS              : Docket No. VA 99-79-C
                                   :
                v.                 :
                                   :
                                   :
ISLAND CREEK COAL COMPANY          :


BEFORE: Marks, Riley, and Verheggen, Commissioners[1]

                               DECISION

BY: Marks and Riley, Commissioners

     This is a compensation proceeding filed by Local 
Union 2232, District 20, United Mine Workers of America
("UMWA") against Island Creek Coal Company ("Island
Creek"), pursuant to section 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 821 (1994)
("Mine Act" or Act).[2]  The Department of Labor's Mine
Safety and Health Administration ("MSHA") issued a
withdrawal order under section 107(a) of the Act, 30
U.S.C. � 817(a), as a result of high methane readings in
Island Creek's VP 8 Mine.  Administrative Law Judge Avram
Weisberger denied the application for compensation.  21
FMSHRC 1093 (Oct. 1999) (ALJ).  The UMWA filed a petition
for discretionary review which the Commission granted.
For the reasons that follow, we reverse the decision of
the judge and remand the proceeding for calculation of
compensation owed to miners.

                               I.

                Factual and Procedural Background

     Island Creek operates the VP 8 Mine, an underground 
coal mine in southwestern Virginia. 21 FMSHRC 1093. On
December 2, 1998, MSHA Inspector David Fowler examined
three entries in the mine.  Id.  UMWA walk-around
representative Billy Shelton and Island Creek mine safety
inspector Michael Canada accompanied Fowler on the ride
underground.  Id.  Fowler and Canada got off the ride and
entered the return airway, while Shelton continued to the
bottom of the Deskins B shaft to wait and pick them up.
Tr. 14.  Fowler and Canada each carried a digital methane
detector.  21 FMSHRC at 1093.  As they reached the No. 1
west development area, Fowler's methane detector
registered 2.1 percent, while Canada's detector indicated
1.8 percent methane.  Id. at 1093-94.

     Fowler and Canada continued to walk further down the
entry to determine the areas affected and to locate the
source of the methane.  Id. at 1094.  At the No. 1 entry,
east of the No. 19 seal, Fowler and Canada took
additional methane readings, with Fowler's monitor
indicating a level of 4.5 percent methane and Canada's
several tenths of a percentage less.  Id. and n.2.
Shortly after 11:00 a.m., Shelton rejoined Fowler and
Canada.  Tr. 15.  Fowler asked Shelton to retrieve
Fowler's Riken methane detector from the vehicle in which
the three had been riding.  21 FMSHRC at 1094.  The Riken
detector is more accurate than digital methane monitors.
Id.  Canada told Fowler that, if the Riken detector gave
a methane reading of 4.5 percent, he would have to pull
his miners based on Virginia law.  Id.

     At 11:30 a.m., Shelton returned with the Riken detector,
which indicated that methane had accumulated to a level
of 4.5 percent at the No. 2 development area.  Id.
Canada left Fowler and Shelton to telephone the mine
dispatcher to notify him to withdraw the miners due to
the high level of methane.  Id.  Fowler and Shelton
continued south in the No. 1 entry and took readings as
high as 10 percent in the No. 4 and 5 development areas.
Id.  They discovered that the plaster had fallen off the
seals separating those areas from the gob, indicating a
possible source of the methane.  Id.

     Around 12:00 noon, Canada rejoined Fowler and Shelton 
in the No. 4 development area.  Id.  Fowler took methane
readings in the range of 8 to 9 percent.  Id.  Fowler
then told Canada he was going to issue a section 107(a)
withdrawal order, since he knew the origin of the methane
and the areas of the mine affected.[3]  Id. and id. at
1098 n.4.

     It was stipulated that, at 12:12 p.m., Fowler issued 
a section 104(a) citation[4] and a section 107(a)
withdrawal order.[5]  Id. at 1094 n.1, 1095.  Fowler
testified at trial that it was at that time that he
determined the miners should be withdrawn.  Id. at 1095.
The order, which was reduced to writing after Fowler
exited the mine, described the conditions warranting the
issuance of the order and identified the areas affected
by the withdrawal order as the No. 4 and 5
developments.[6]  Id.; UMWA Ex. A.  Sometime after 1:00
p.m., Fowler encountered some miners along the trackway
inside the mine and told them to go outside until he
could determine why the methane was being liberated.  21
FMSHRC at 1095; Tr. 71-73.  Fowler told mine
superintendent Terry Suder to make sure that everyone was
out of the mine.  21 FMSHRC at 1095.

     Island Creek continued to pay all the miners including
any who evacuated to the surface in the hope that a
correction to decrease the methane level would occur
quickly but later released them to go home.  Tr. 144-145.
Island Creek Superintendent Suder estimated that it took
45 to 50 minutes to evacuate the miners from the mine.
Tr. 145.  At trial, the parties stipulated that the first
miners exited the mine at approximately 1:30 p.m.  21
FMSHRC at 1095.

     Subsequently, the UMWA filed a complaint for compensation
requesting 2-1/2 hours compensation for 41 miners, which
included the remaining time on the 8:00 a.m. to 4:00 p.m.
shift.  Compl. at 2 and Ex. C.  Island Creek opposed the
complaint, and a hearing was held.

     In his decision, the judge relied on the Commission's
decision in Local Union 1261, District 22, UMWA v.
Consolidation Coal Company, 11 FMSHRC 1609 (Sept. 1989)
("Local Union 1261"), aff'd sub nom. Local Union 1261 v.
FMSHRC, 917 F.2d 42 (D.C. Cir. 1990), which he concluded
was controlling authority for the issues before him.  21
FMSHRC at 1095.  The judge stated that the primary issue
before him was "whether miners are entitled to
compensation under . . . 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."  Id.  The judge found that at 11:30 a.m., Canada
told the dispatcher to get everyone out of the mine due
to elevated methane.  Id. at 1097.  The judge further
found that, when MSHA inspector Fowler issued the section
107(a) withdrawal order, the order to evacuate  the
miners had already been given by Island Creek.  Id.
Therefore, the judge concluded that, under the holding of
Local Union 1261, MSHA's withdrawal order did not
effectuate the removal of the miners and, thus, no miners
were working when Fowler issued the withdrawal order.
Id.  The judge rejected the UMWA's contention that Island
Creek's decision to remove miners was made in
anticipation of MSHA's issuance of a section 107(a) order
in order to avoid liability for compensation of the
miners.  Id. at 1098.  Accordingly, the judge dismissed
the compensation proceeding.  Id.

                               II.

                           Disposition

     The UMWA argues the judge's finding that the miners 
were not working when MSHA issued its section 107(a) order 
is not supported by substantial evidence.  UMWA Br. at 6.
In support, the UMWA relies on the stipulation that the
first miners withdrawn appeared on the surface at 1:30
p.m. and that it took 45 to 50 minutes for miners to exit
the mine following the evacuation order.  Id. at 6-7.
Therefore, the UMWA contends that miners could only have
begun exiting the mine after 12:30 and after the MSHA
inspector issued the section 107(a) order.  Id. at 7;
Reply Br. at 3-5.  Alternatively, the UMWA argues that
the miners were still in the mine working, even if
evacuating, when the section 107(a) order issued.  UMWA
Br. at 7-8.  The UMWA further argues that, even if the
miners were not working at the time the section 107(a)
order issued, nevertheless they qualified for relief
because they were "working during the shift when the
citation was issued," as required by section 111.  Id. at
8.  The UMWA distinguishes the Commission's decision in
Local Union 1261 because there miners were withdrawn from
the mine and paid for the remainder of their shift on a
day prior to MSHA's arrival and withdrawal order.  Id. at
9-11.  Finally, the UMWA argues that the Commission
should not allow an operator to withdraw miners in
anticipation of a withdrawal order in order to avoid
section 111 compensation liability.  Id. at 11-13.

     Island Creek responds that the UMWA inaccurately stated
in its brief some of the facts regarding the timing of
events at the mine.  I.C. Br. at 4-5.  Island Creek
further argues that the essential facts in the case are
not in dispute.  Id. at 5-6.  Island Creek contends that
the disposition of this case is governed by the
Commission's decision in Local Union 1261, that the judge
correctly applied the decision to the facts of the case,
and that the MSHA inspector did not bear the brunt of
miner animus because it was the operator who withdrew the
miners.  Id. at 6-7.  Finally, Island Creek argues that
the record does not support the UMWA's speculation that
the miners were evacuated from the mine so it could avoid
section 111 compensation liability.  Id. at 8-9.

     When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of
the Mine Act to apply the substantial evidence test.  30
U.S.C.                   � 823(d)(2)(A)(ii)(I).
"Substantial evidence" means "'such relevant evidence as
a reasonable mind might accept as adequate to support
[the judge's] conclusion.'"  Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).  In reviewing the whole record, an appellate
tribunal must consider anything in the record that
"fairly detracts" from the weight of the evidence that
supports a challenged finding.  Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

     Section 111 of the Mine Act provides for compensation 
for the balance of a shift to miners who are "working during
the shift" when a section 107 order issues if they are
"idled" by the order.  It is apparent that the miners in
the VP 8 mine were working during the shift in which the
withdrawal order issued.  Our focus in this proceeding
then is whether the miners were idled by the MSHA order.
In the Local Union 1261 decision, the Commission reviewed
an earlier application of the requirement.  The
Commission stated that the term "idled" includes both a
physical removal from the mine and a prohibition from
entering the mine.[7]  11 FMSHRC at 1612 n.4 (citations
omitted).  The record in the instant proceeding does not
reflect that either event had occurred at the VP 8 mine
prior to the section 107(a) withdrawal order.[8]

     The factual underpinning of the judge's decision was 
that "the mine operator had voluntarily closed the mine 
for safety reasons prior to the issuance of an order
described in section 111. . . ."  21 FMSHRC at 1095; see
also id. at 1097.  The judge found that Canada had
contacted the mine dispatcher to evacuate the mine around
11:30 a.m.  However, Canada's actions, while  prudent and
commendable, are not by themselves determinative of
whether miners were idled as a result of his telephone
call or as a consequence of the subsequent section 107(a)
withdrawal order.  Even if some miners were evacuated to
the surface as a result of Canada's call, the record does
not establish that all miners were evacuated or that
those who were evacuated were barred from going back in
the mine before Fowler issued the section 107(a)
withdrawal order.  Indeed, the testimony of Island
Creek's own witness shows that, after mine superintendent
Suder learned of the withdrawal order, sometime after
1:00 p.m., he called to release miners on the surface,
who were still being held and paid by Island Creek.  Tr.
142-44.  Thus, the status of these miners was unchanged
even after Island Creek ordered the evacuation of the
mine.  Consequently, the judge's determination that the
mine was closed and that miners were idled prior to
issuance of the withdrawal order is contrary to the
overwhelming weight of record evidence.

     As the Commission stated in Local Union 1261, "[A] 
miner who has been previously withdrawn from a mine can 
still be 'idled' by a subsequently issued withdrawal order 
in the sense that the miner is barred by the order from
returning to work and that miners so idled may be
entitled to compensation."  11 FMSHRC at 1615.  Indeed,
as Suder testified, until he found out about the
withdrawal order, he expected that the miners who were
held on the surface in pay status would be sent back into
the mine.  Tr. at 144-45.  The Commission noted in Local
Union 1261 that an important legislative purpose in
adopting section 111 was to insulate the mine inspector
from any repercussions that might arise from the
withdrawal of miners and temporarily depriving them of
their livelihood.  11 FMSHRC at 1615 (citation omitted).
Clearly, the section 107(a) withdrawal order, which
directly resulted in the operator taking the miners out
of pay status, embodied the precise harm that Congress
was concerned about when it drafted section 111.
Therefore, its application here to compensate miners,
some of whom were out of the mine but still on mine
property and being paid, is consistent with this
legislative purpose.

     Further, Island Creek's earlier evacuation notice did 
not result in the complete withdrawal of miners from the mine
and the cessation of all work activities.  Following the
mine's evacuation notice, Fowler met rank-and-file miners
in the mine and had to tell them to leave, and he
instructed mine superintendent Suder to make sure
everyone was out of the mine.[9]   21 FMSHRC at 1095.
Thus, we conclude that substantial evidence does not
support the judge's determination that the mine had
effectively closed prior to the Fowler's issuance of the
section 107(a) withdrawal order.

     Finally, Island Creek stipulated that miners did not 
exit the mine until 1:30 p.m.  Given the testimony of Canada
and Suder that it took 45 minutes to an hour to evacuate
the mine (Tr. 108, 145), miners could not have begun
evacuating the mine until 12:30 p.m. at the earliest,
after the section 107(a) withdrawal order, which issued
at 12:12 p.m.  While this stipulation alone establishes
entitlement of the miners to compensation, there is other
record evidence that establishes that miners continued in
pay status and were in the mine well after the Island
Creek evacuation order, so that it is clear that they
were affected by the MSHA order.

     In short, given the judge's findings, the stipulation,
and the testimony of Island's Creek's own witnesses,
substantial evidence does not support the judge's
ultimate finding that "the removal of the miners
previously ordered to be withdrawn by Canada, was not
effectuated by Fowler's order."  21 FMSHRC at 1097.
Rather, the evidence supports only one conclusion � that
the miners were "idled" by the withdrawal order issued by
Fowler  and, therefore, are entitled to compensation for
the remainder of the shift.

                              III.

                           Conclusion

     For the foregoing reasons, we reverse the decision of 
the administrative law judge and remand the case to the judge
for calculation of the compensation due miners for the 2-1/2
hours of the shift during which they were idled by the
section 107(a) withdrawal order.


                             Marc Lincoln Marks, Commissioner

                             James C. Riley, Commissioner


Commissioner Verheggen, concurring in result:

     Like my colleagues in the majority, I would reverse the
judge's decision in this matter and remand the case for
calculation of the compensation and interest due the
miners.  I write separately, however, because the grounds
on which I base my decision differ from those of my
colleagues, as I explain below.

     The provisions of the first sentence of section 111 of
the Mine Act at issue here provide that when miners are
idled by an imminent danger order, they "shall be
entitled . . . to full compensation by the operator at
their regular rates of pay for the period they are idled"
during the shift when the order was issued.  30 U.S.C. 
� 821.  Section 111 was intended to ensure that:

          [M]iners who are withdrawn from a mine because 
          of the issuance of a withdrawal order shall 
          receive certain compensation during periods of 
          their withdrawal. This provision . . . is not 
          intended to be punitive, but recognizes that 
          miners should not lose pay because of . . . 
          an imminent danger which was totally outside 
          their control. It is therefore a remedial 
          provision . . .

S. Rep. No. 95-181, at 47 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 634-35 (1978) (emphasis added).  In my view, given the
clear purpose of section 111 to recompense miners for pay lost as
a result of an imminent danger order, miners are "idled" for
purposes of determining their eligibility for section 111 pay
when they in fact actually cease being paid � when they are, in
other words, "taken off the clock" because an imminent danger
order has been issued.

     My interpretation of section 111 differs somewhat from 
my colleagues, who view the term "idled" as including "both
a physical removal from the mine and a prohibition from
entering the mine."  Slip op. at [5].  But here, Island
Creek continued to pay its miners who were held on the
surface in the hope that the problem which caused
elevated methane levels would be corrected.  Tr. 144-45.
Mr. Suder testified:

               A     . . .  We thought, you know, if this is
          just a small item, we can correct it and we can get 
          back to work. Until I found out the particulars, we 
          held the men.

               Q     Okay.  And since you held them, you paid
          them until they were released to go home?

                A     Yes.

Id.

     By 1:30 p.m. on the day in question, the problem was 
not corrected, and the miners were barred from reentering 
the mine because of the section 107 order in force by
then[10] � and this is when Island Creek discontinued
paying the miners and released them to go home.  Tr.
144-45.  I also note that the UMWA's complaint requests
2-1/2 hours of compensation, i.e., for the period from 1:30
p.m. to 4:00 p.m., the remaining time on the 8:00 a.m. to
4:00 p.m. shift when the miners were sent home.  Compl.
at 2 and Ex. C. The purpose of section 111 is to
recompense lost pay, regardless of whether miners have
been physically removed from the mine and are prohibited
from reentering it.  Thus, whether evacuation of the
miners had been ordered in this case before the section
107 order was issued is irrelevant.  The relevant
question is instead whether the miners have, in fact,
lost compensation, to which they otherwise would have
been entitled, as a result of the section 107 order.[11]

     I thus find that the miners in this case, who were barred
from reentering the mine by the section 107 order, then
"idled" when taken off the clock, are entitled to
compensation under section 111, and I join my colleagues
in reversing the judge and remanding the case to him so
that he may calculate an award of compensation and
interest.



                           Theodore F. Verheggen, Commissioner


Distribution

Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031-2215

Elizabeth Chamberlin, Esq.
Robert Vukas, Esq.
Consol Inc.
1800 Washington Road
Pittsburgh, PA 15241

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1] Chairman Jordan and Commissioner Beatty recused
themselves in this matter and took no part in its consideration.
Pursuant to section 113(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. _ 823(c), this panel of three
Commissioners has been designated to exercise the powers of 
the Commission.

     [2] Section 111 of the Act provides,

          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 regular 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.

     [3] While Canada testified that Fowler did not ask him to
withdraw miners from the mine, he did not deny that Fowler told
him that he had a section 107(a) withdrawal order.  Tr. at
118-20.

     [4] The citation alleged a violation of 30 C.F.R. � 75.323(e), 
which prohibits methane levels exceeding 2 percent in a split of 
air. 21 FMSHRC at 1094 n.1. The citation was ultimately vacated. Id.

     [5] Section 107(a), 30 U.S.C. � 817(a), provides, in relevant 
part,

          If, upon any inspection or investigation . . . , 
          an authorized representative of the Secretary finds 
          that an imminent danger exists, such representative
          shall determine the extent of the area of such mine 
          throughout which the danger exists, and issue an 
          order requiring the operator of such mine to cause 
          all persons, . . . , to be withdrawn from, and to 
          be prohibited from entering such area until an 
          authorized representative of the Secretary determines 
          that such imminent danger and the conditions or 
          practices which caused such imminent danger no 
          longer exist.

     [6] Fowler explained at trial that he referenced the No. 4
and 5 developments in the order because they were the direct
source of the methane, but the order would cause everyone
underground to be evacuated because of the explosive range of
methane.  Tr. 87-88.

     [7] The primary issue in Local Union 1261 was whether
miners were working during the shift when MSHA issued its
withdrawal order or were on the next working shift.  11 FMSHRC at
1615-16.  In addressing the requirement in section 111 that
miners must be "idled," the Commission stated that, "We do not
disavow the Commission's earlier interpretation of 'idled'   . .
. "  Id. at 1615.  Local Union 1261 is therefore instructive on
the meaning of "idled" in section 111.  Island Creek further
argues that Local Union 1261 is controlling on the disposition of
entitlement to compensation in this proceeding.  However, that
decision dealt with the entitlement of miners to shift
compensation for the day MSHA issued an order closing the mine,
when the operator had voluntarily closed its mine on the day
before, thereby barring miners on subsequent shifts from entering
the mine.  Id. at 1611.  The complaint for  miner compensation in
Local Union 1261 therefore involved a markedly different set of
facts and ultimately involved a different provision of section
111 ("second sentence compensation") than is involved in this
proceeding ("first sentence compensation").  See id. at 1611-12.

     [8] While Commissioner Marks welcomes Commissioner
Verheggen's joining in the result, he does not agree that the
Commission's interpretation of the term "idled" needs to be
disturbed.  See slip op at 9-10.  In his concurrence,
Commissioner Verheggen correctly points out that the miners in
this case, because they were paid by Island Creek for the time
they spent exiting the mine and waiting on the surface, cannot be
considered to have been "idled" under the terms of the statute
until such time that they actually began to lose pay that they
otherwise would have been due.  Id. at 10.  However, such an
analysis only establishes the start of the first sentence
compensation period; it does not answer the ultimate question
this case presents, which is what caused the miners to be idled.

     [9] It is evident from the record that this group of miners
was not a repair crew authorized under section 104(c) of the Act,
30 U.S.C. _ 814(c), because such a crew must be assigned by the
operator to "eliminate the condition described in the [section
107(a) withdrawal] order."  Canada testified that, when he told
mine superintendent Suder about the section 107(a) withdrawal
order, Suder was shocked and surprised to learn of the order.
Tr. 128-29.  Thus, Suder could not have ordered the repair of a
problem, based on the order, about which he was unaware.  In any
event, Canada and Fowler ordered the miners out of the mine.  Tr.
128-29.

     [10] I believe this answers the question Commissioner Marks
poses in his footnote responding to my concurrence, i.e., "the
ultimate question this case presents, which is what caused the
miners to be idled."  Slip op. at [6 n.8].  At the time the
miners were taken off the clock at 1:30 p.m., Island Creek could
have continued paying them to wait for the methane problem to be
corrected -- in which case, the miners would not have been "idle"
for purposes of section 111.  When the company opted instead to
discontinue paying the miners and release them to go home (Tr.
144-45), at that time, all the miners would have been able to do
was wait because the section 107 order in force by then barred
them from going back underground.  In other words, the
circumstances surrounding "the start of the first sentence
compensation period" (slip op. at 6 n.8) in turn establish "what
caused the miners to be idled" in this case.

     [11] In Local Union 1261, Dist. 22, UMWA v. FMSHRC, the
District of Columbia Circuit opined in essence that to be idled
for purposes of section 111, miners would have to be "'on-the-job
in the mine.'"  917 F.2d 42, 47 (D.C. Cir. 1990).  I do not
believe that the interpretation I offer here of the first
sentence of section 111 is inconsistent with this holding.
Although the miners being held at the surface at the VP 8 Mine
were not "in the mine" in the sense that they were underground,
they were certainly still on the mine property.  Moreover, the
miners were "on-the-job" insofar as they were still being paid,
albeit paid to do nothing but wait for further orders, a not
uncommon situation for workers to be in on mine sites -- or on any
other job site of any description.  As for the Commission case
which the D.C. Circuit was reviewing, Local Union 1261, Dist. 22,
UMWA v. Consolidation Coal Co., 11 FMSHRC 1609 (Sept. 1989), I
agree with my colleagues that it "involved a markedly different
set of facts and ultimately involved a different provision of
section 111 . . . than in involved in this proceeding."  Slip op.
at [5 n.7].