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Title: Wyoming Fuel Corp. Golden Eagle Mine and UMWA, District 15, Local Union 9856 
Date: January 18, 1990
Arbitrator: David Robinson
Citation: 1990 NAC 101

BEFORE THE BITUMINOUS COAL ARBITRATION SERVICE

_____________________________________________________________

WYOMING FUEL CORPORATION,   )

GOLDEN EAGLE MINE,                       )        ARB.  NO. 89-GE-42

                        and                                   ) GRIEVANT:  FILBERT J. ROYBAL         

UMWA, DISTRICT 15, LOCAL             )

UNION 9856.                                           )      RE:      DISCHARGE

_____________________________________________________________

Place of Hearing:                  Holiday Inn, Trinidad, Colorado

Date of Hearing:                    Thursday, January 11, 1990

Arbitrator:                               David K. Robinson, J. D., 
                                               2940 Spokane Drive
                                               Las Vegas, Nevada 89121

Appearances:

            Company:                  Charles Gilliam, Jr., 
                                              Labor Relations Associates,
                                              Inc., P.O. Box 3021,
                                              Charleston, WV 25331

            Union:                         Art Mestas, UMWA District 15, 
                                               Sub-district Representative, Route 3, Box 280,
                                               Trinidad, CO 81082

Witnesses:

            Comp                         David L. Huey, Manager, Mine Operations;
                                               Bill A. Massarotti, Maintenance Foreman;                                                 Lawrence J. Corte, J.D. Attorney for Company;

            Local Union:               Philbert J. Roybal, Grievant; Thomas A. Hay,                                                Shuttle Car Operator: Jerry A. Romero (as                                                adverse witness), Grievant's Section Foreman;                                                 Robert D. Butero, Health and Safety Representative,

                                                International Union, UMWA.

ISSUE

DID THE COMPANY HAVE JUST CAUSE FOR TERMINATING THE GRIEVANT?

PROVISIONS OF NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF 1988  (SOMETIMES HEREAFTER "AGREEMENT") CITED BY THE PARTIES OR RELEVANT TO THE CASE

            Article III -- HEALTH AND SAFETY

            Article XXIII -- SETTLEMENT OF DISPUTES

            Article XXIV -- DISCHARGE PROCEDURE

Section (a) Just Cause Required

            No Employee covered by this Agreement may be disciplined or discharged except for just cause.  The burden shall be on the Employer to establish grounds for discharge in all proceedings under this Agreement.

EXHIBITS RECEIVED INTO EVIDENCE

See Appendix A

ARBITRATION CASES OR SECONDARY AUTHORITIES CITED BY THE PARTIES

See Appendix B

POSITIONS OF THE PARTIES

Company:

            Wyoming Fuel Company (hereafter ”Wyoming”) is the successor operator of the Glen Eagle Mine located in Weston, Colorado.  Wyoming took over the mine in 1984.  Formerly C. F. and I Mining Company (hereafter sometimes ‘C. F. I’.), operated the Glen Eagle and other area mines.  When Wyoming took over, it experienced from the outset an alarming accident frequency and undertook a program to train, educate, and reduce the number of accidents with a positive and accident reducing result.

            The Grievant, Filbert J. Roybal, had been employed by C. F. I. and by it's successor, Wyoming, since April 7, 1971. 

            On October 9, 1989, Filbert J. Roybal was working with Donald V. Valdez (aka Karate Valdez), another long time employee of both companies.  Mr. Roybal was, on that day, a Continuous Mining Machine Operator (CMO shall sometimes hereafter refer to Continuous Mining Machine Operator).  Mr. Valdez was the Miner Helper (sometimes called cable puller).  Shift work began as the men went underground about 4:00 P. M.

            Mr. Roybal had just been awarded the job as CMO after bidding in.  Mr. Roybal had previously had extensive experience as a CMO.  On October 9, 1989, Mr. Roybal had to be task trained under the law.  Section Foreman Jerry Romero gave the training before Mr. Roybal began digging coal.  The regular miner helper was absent that day.  Mr. Valdez, an experienced helper, was assigned to be helper to Mr. Roybal.

            At about 10:25 P.M. after three cuts had been made, Mr. Roybal backed out the Mining Machine without knowing where his helper was.  When Mr. Roybal backed out, he backed out too close to a rib in the mine, pinned Mr. Valdez and crushed him.  Mr. Valdez, seriously injured, was taken from the mine and later died from the injuries. 

            Mr. Roybal operated the machine negligently and unsafely.  Mr. Roybal didn't follow safe job procedures.  Mr. Roybal, upon being questioned, made false representations in order to cover up his own unsafe and negligent act.

            When the mining machine was tested by MSHA inspectors and by Company and Local Union officials, the machine was found to be fully operational.  Mr. Roybal had claimed a defect in the throttle as an excuse to cover up his own negligence.

            Later, Mr. Roybal and other Classified Employees conspired throughout the MSHA formal inspection to cover up Mr. Roybal's unsafe and negligent operation of the Continuous Miner.

            Mr. Roybal was immediately reassigned while the investigation continued.  After the investigation by the Company, the Union, MSHA, and the Colorado State Agency investigators, Mr. Roybal was suspended with intent to discharge on November 1, 1989.  No investigation resulted in any citation of the Company.

            Mr. Roybal demonstrated cavalier disregard for health and safety, among other things, which resulted in the death of Donald V.  Valdez 

            The discharge should be affirmed.

Local Union.

            The Company has the burden of proof.  There was not just cause for discharge in this case as the evidence and testimony will show.  The Company, at third step, failed to elaborate on reasons for the discharge.  The Company allowed the Grievant to stay on the job until October 31 even though the accident was on October 9, 1989.  Failure to administer any discipline gave the impression of waiver, condonation and lack of enforcement.

MATTERS OF PROCEDURE

            The case was not heard or scheduled for hearing for several weeks after the suspension with notice of intent to discharge given on November 1, 1989.  The parties stipulated before the hearing began that this matter was, notwithstanding, properly before the arbitrator for final resolution.  A motion to sequester witnesses made at the beginning of the hearing was granted.  At the outset of the hearing after the company's opening statement, the arbitrator announced that his charge was to interpret the National Agreement as it related to the grievance, that he could not go beyond the scope of the Agreement and would not consider any allegations sounding in criminal negligence or criminal conspiracy.  As is required by the Agreement, the bench decision was announced at approximately 7 P.M. on the date of the hearing after both parties had rested their cases, and the arbitrator privately studied the record, the evidence, argument of the representatives and the secondary authorities and cases submitted by the parties.

FACT SUMMARY

            David L. Huey, Manager of Mine Operations, testified.  Mr. Huey detailed the steps taken by the Company during the investigation of the incident resulting in the serious injury to and death of Mr. Valdez.  Investigators from the Company, the International Union of UMWA, The Colorado Division of Mines, and the Mine Safety and Health Agency participated.  The investigation was completed about November 1, 1989 although the final written report from MSHA has not been made.  Neither Mr. Huey nor any other Company witnesses actually saw the accident and base their knowledge on the results of the investigation and their own belief.

            All witnesses agreed that Mr. Valdez, the cable puller or Helper of the continuous mine machine two man crew, was crushed against a rib of the mine by the continuous miner machine operated by the Grievant, Mr. Roybal.  Mr. Huey, as the first witness, brought out that Mr. Roybal first claimed that the throttle valve had stuck.  Mr. Tom Hay, a shuttle car operator, and the nearest employee to the actual scene of the incident said also that Mr. Roybal had told him that the valve had stuck.  Mr. Hay could not know that according to Mr. Roybal, even if it were true, because Mr. Hay in his shuttle car was about sixty feet away and within the noise center of the shuttle car's motor and a nearby ventilation fan.  Mr. Hay is the only employee who saw Mr. Valdez moving his arms in such a way before the machine was stopped that Mr. Hay thought there was something wrong.  The exact location of Mr. Valdez just before and shortly before he was crushed is disputed.  Mr. Roybal said he told Mr. Valdez he was going to turn when Mr. Valdez was standing beside the cab.  Mr. Roybal also said as he was backing out that he saw Mr. Roybal shortly before in the cross over as he looked right and before he looked left to line up the machine with the shuttle car.  Mr. Hay testified that he had and that he had not seen Mr. Valdez in the cross over.  Mr. Hay testified that he thought Mr. Roybal's machine was close to the wall as it was backing and just before he saw Mr. Valdez flailing his arms before the machine stopped.

            After the continuous miner machine was checked out by operating it  {Mr. Huey operated the machine then] in the presence of inspectors and when the throttle valve was dismantled and tested by an engineer from MSHA, it was found that nothing was wrong with either the machine or the valve.  (Co. Exhibits 5-11).    Operator error was the cause of the death not the machinery according to Mr. Huey. Mr. Roybal negligently pivoted the machine to the right instead of to the left after making a cut and backing away from the cut to prepare to remove coal.    By being pivoted right instead of left, Mr. Huey testified, the machine struck Mr. Valdez.  Mr. Huey thought that Mr. Valdez was in the place he should have been at the time he was struck based on investigation. 

             The Helper watches the cable to keep it away from the mining machine.  The Helper and the Operator maintain communications verbally and by signaling by moving their heads thus making the light [cap lamp] another means of communication in the din and relative darkness of the mine.  The operator should know where the Groundman is at all times Mr. Huey testified.  Mr. Roybal had operated the machine about six hours on the shift before the accident and was on about the third cut.

            Also, at the time of the 24/48-hour meeting Mr. Roybal and Mine Committeemen held a caucus, Mr. Huey said, and Mr. Roybal then acknowledged that he had made a mistake in operating the continuous miner machine.

            Mr. Huey explained that there was coal dust at that point in the rib where the machine hit the rib, that the point on the rib was painted just after the accident to highlight the point, and that there was coal dust under Mr. Valdez' fingernails.  Evidence pointed to the likelihood that Mr. Valdez was first struck by the light fixture affixed to the cab.

            Lawrence J. Corte testified for the Company.  Mr. Corte is an attorney and also has underground hard rock mining experience and is familiar with underground coal mines but not as a coal miner.  He identified the MSHA inspector and described how the inspection was conducted.  Several statements were taken (Company Exhibit 16) by the MSHA investigator.  The findings of the Colorado Mining Division were also introduced and received (Company Exhibit 4).

            Bill Massarotti testified on behalf of the Company.  Mr. Massarotti is the Maintenance Foreman.  He identified Company Exhibits 5 through 11 as evidence that nothing was wrong with the throttle valve or the lubricating oil in the valve assembly.  Mr. Massarotti has known Mr. Roybal as a fellow employee since 1977 and described him [Roybal] as a mouthy kind of guy.

            Mr. Roybal, the Grievant, testified.  He has been with C. F. I. and Wyoming for 18 years.  He said he hadn't been on a continuous miner very much for about 7 years before the incident.  He acknowledged having many years experience until recently as a continuous mining machine operator and that during the last 12 months before taking over operation on the day of the accident, he had operated the machine about one day per month.  During the 4 years before the accident, Mr. Roybal testified that he operated the continuous miner about 1 day in 1984, 3 days in 1985, 1 day in 1988 and about once per month in 1989.

            On the day of accident, Mr. Roybal arrived at the machine after bidding into the job for his task training.  Mr. Jerry A. Romero, Section Foreman, read the Task Training Guidelines (Company Exhibit 3) to him.  Romero then showed the controls, had a little trouble with, priming made some adjustments (From Company Exhibit 16 meaning to restore prime by pulling the throttle lever, raising the heads, and loosening the panic bar and the off and on switch until they picked up the prime [Romero’s testimony, page 16]) and then had Roybal get onto the machine, make a few cuts, and then he left.  There was no actual practice time.

            There was no   testimony by Mr. Roybal, by Mr. Jerry A. Romero or any others that Mr. Roybal and Mr. Valdez were instructed together about task training guidelines such as maintaining constant communication between them.

            Mr. Roybal testified that he stopped while working to wait for the roof bolting crew to go through while he was working, that he parked the mining machine about 7:30 P.M. and went to lunch while the machine was serviced and went back to work about 8 P.M.  He testified that he maintained communications with Mr. Valdez at each cut.  As he was backing up in entry 2, there was a roof fall.  At that time, he said, Mr. Valdez was standing next to him.  Mr. Roybal said he told Mr. Valdez he was going to back up.  He then saw Mr. Valdez in the cross cut while he was backing up.  He did not see Mr. Valdez come up, signal with his light or anything.  When he then saw Mr. Valdez so close, he hit the panic bar and the machine reacted as it had when Mr. Romero first got on the machine during training at the beginning of the shift.  After the machine stopped, he picked up Mr. Valdez as he [Valdez] was slumping to the floor.

            Mr. Roybal showed hats and buckles he had received for safe work over the years of his employment.  He testified he did not have any disciplinary actions taken against him.  On cross examination, when shown Company Exhibits 13 through 15, he acknowledged having received the disciplinary notices or discipline described in the exhibits.  He also acknowledged that he considered himself an experienced continuous mining machine operator.  Before Wyoming took over (about 1984) he and Valdez had worked together from time to time and had known each other since 1973.

            On cross-examination, Mr. Roybal denied having made a statement to Mr. Huey that he [Roybal] had made a mistake.  Mr. Roybal testified that he still thinks the throttle did not work at the time he tried to stop the machine when Mr. Valdez was hit.

            Section Foreman Jerry A. Romero testified as an adverse witness for the Union.  He recounted reading the training guidelines (Company Exhibit 3) to Mr. Roybal about 4 P.M. at the beginning of the shift.  He watched Mr. Roybal make two cuts and then left the area.  When examining the accident scene later that shift, Mr. Romero concluded that Roybal was too close to the wall (about 2 feet) when he was backing up.  He estimated that the shuttle car operator, Mr. Hay, would have been about 25-30 feet away at the time of the accident.

            Shuttle Car Operator Tom A. Hay testified for the Local Union.  C. F. I. and now Wyoming have employed him about 17 years.  He was about 50 feet away from the point of impact between the machine and Mr. Valdez.  He testified that Mr. Roybal was an experienced operator.  Mr. Hay has worked occasionally as the Helper (cable puller) but never as a CMO.  He saw Mr. Valdez standing near the machine and flailing his arms in a way indicating to him [Hay] that something was wrong just before the continuous mining machine was stopped.  When in his position as shuttle car operator, he did not see Mr. Valdez ever in the cross cut.

            Robert D. Butero, Safety Inspector the International UMWA, testified for the Local Union.  He arrived at the accident site about 5 A.M. on October 10, 1989.  With other investigators, including the MSHA investigator, he entered the mine.  He was given the witness statements taken by the Company's Mr. Bayes (Union Exhibit B).  The continuous miner was operated during the investigation but never put back into the same position where it had been stopped after the injury to Mr. Valdez.

            Mr. Butero noted that Valdez and Roybal, while both were experienced, had not worked together as a team for sometime until the night of the industrial accident being investigated.  He voiced his opinion that the Company's firm position about conspiracy and attempts to hurt the Company arose more from his [Butero's] written complaint about the investigation than about the actual testimony of Hay and Roybal.  Mr. Butero acknowledged on cross-examination that he had met with local union Employees including Mr. Roybal and Mr. Hay early in the investigation and at the home of one of the local union officials.

            Mr. Butero said it is impossible for the Continuous Miner Operator to do his work and continuously know the whereabouts of the Helper since the Operator must look up, down, over his shoulders for the location of the shuttle car and the Helper.  The Helper, as a part of the team, must also communicate with the CMO in such a way that the two know what each other are doing when the machine is moving.  The Helper must, for example, watch out for himself once the machine has clearance by communicating by shaking his head.  On Cross examination, Mr. Butero denied that Mr. Roybal had not been alert based on the inspection but acknowledged that there was no defect in the throttle valve, the oil, or the machine.

 

DISCUSSION

A.

            The employer has the right to manage the mines, direct the working force, and hire and discharge subject only to the limitations imposed by the Agreement.  Article IA (d).  The burden of "just cause" to discipline or discharge an employee under the Agreement is on management Article XXIV (a).  The concept of just cause defies clear explanation but is, in jurisprudence, within the principle of equity.  The term "equity" is often applied to mean, "Do that which ought to be done."

            In discharge cases, arbitrators tend to look at the gravity of a situation and put the situation then into the tapestry of the overall history of the employer/ employee relationship.  This principle is well expressed in the common points of inquiry used by many arbitrators as in Eastern Coal Corporation and UMWA District 30, Local 5737, Arb.  No.  84-30-86-367 (J.  Reese Johnston, Jr., Arb., 1/12/87):

1.         It must be determined whether the offense charged against the grievant is normally considered a serious enough offense to warrant discharge;

2.         It must then be determined whether the record taken as a whole supports a finding that the employee is guilty of the misconduct for which he stands accused; and

3.         If the preponderance of the credible evidence in the record as a whole supports a finding that the employee has committed an offense it is the necessary to determine the existence of any mitigating or aggravating circumstances.

            The burden of proof required in discipline cases in arbitration varies from "beyond a reasonable doubt" as if the matter were a criminal case in a court of law, to "clear and convincing," evidence to "preponderance" of proof as used by Arbitrator Johnston in Eastern.  The more stringent burdens recognize that discharge in an industry can be analogized to capital punishment.  Indeed, a discharge in the bituminous coal industry as it exists today with its history of several years of a diminishing work force would likely mean the end of an employee's possibility of obtaining other work in the industry.

            I long ago adopted the "clear and convincing" proof burden as the standard I use in discharge cases.  The burden is defined as "more than a mere preponderance but not beyond a reasonable doubt."  30 Am Jur 2d, Evidence § 168.  With that change and applying Eastern, supra, I find that the Company proved that the grievant was negligent in operating the continuous miner at the time of the death causing crushing injury to the Helper.  However, I do not believe the grievant's negligence was intentional or that it rose to he level of gross negligence.  The term "gross negligence" is often applied to conduct exhibiting reckless indifference.  I am unpersuaded that Mr. Roybal intentionally or recklessly brought on the death of Mr. Valdez.  I will discuss more about this element later.

No evidence was introduced by the Company to show that: (1) the remedy of discharge was usual or consistently applied in every case when an employee was killed or severely injured on the job and the death or injury could be could be attributed to the actions of another worker, or (2) that Mr. Roybal had notice during his employment history that he would be discharged if he violated a task training rule.  Noticeably there was no progressive discipline applied in this case.  To reach a conclusion that the offense is one serious enough to warrant discharge, I must adopt the companies firmly held belief that Mr. Roybal was grossly negligent.  Impliedly, the Company's position must then be that Mr. Valdez did not contribute Ito the accident and communicated as a team whereas Mr. Roybal didn't, and that the point where Mr. Valdez was pinned against the rib of the mine was where Mr. Valdez should properly have been standing as the Helper-member of the two man crew.  I agree with the Colorado Division of Mine's finding that the accident was human error. 

            In this particular case, for example, there is no certainty that the injured man was not warned by Mr. Roybal that he was backing up, as Mr. Roybal testified.  Nobody saw or could hear all of the events immediately leading up to the accident.  The nearest man, Mr. Hay was described variously as being 25 to 50 feet away in his shuttle care.  Mr. Hay's position (at the controls of the shuttle car) tend to show that he was back from the mining machine, back from the cross cut and surely unable to hear any verbal communication between Mr. Roybal and Mr. Valdez because of the noise and because of the position he was in with respect to the mining machine, the cross cut, and the Helper.  This combination made it unlikely to see any light signal communication by Mr. Valdez.

            Mr. Hay described his noticing that the mining machine appeared to be close to the wall as it was being backed out from the cut.  Mr. Romero, while not an eyewitness, believed the machine was too close to the wall.  Mr. Huey, not an eyewitness either, believed the accident happened because Mr. Roybal pivoted the machine in the wrong direction.

            By clear and convincing evidence, the Company established that neither the machine nor the throttle valve was faulty.  However, what was also established by clear and convincing evidence is that the task training was minimal notwithstanding that Mr. Roybal had just been assigned to the job after bidding in.  Mr. Valdez was not present when Mr. Romero read the task training instructions to Mr. Roybal.  Whether there was any emphasis of any kind on maintaining communications or any discussion among Roybal, Section Foreman Romero, and the Helper is not known.  Since Roybal was just returning after little recent experience operating the continuous miner and with no recent experience working with Mr. Valdez as a Helper handling the cable to the continuous miner, it is astonishing that there was no emphasis or meeting about the communication necessary between operator and helper.

            I am not minimizing the tragic fact that a man died.  I must, however, consider whether discharge is the appropriate remedy when there has been no other recorded violation of any similar type by Mr. Roybal, an employee of C. F. I./Wyoming for more than 17 years.  Mr. Roybal had been disciplined on three previous occasions in his 17-year history.  The first was for an infraction in 1977 for running from the mantrip to the lamphouse.  The second was in July 1984 when Mr. Roybal was suspended for abusive language.  The third was a written notice for participating in a work stoppage [along with many other Local Union members] in April 1989.  No discipline involved property damage or allegations of unsafe or negligent operation of equipment.  Here, Mr. Roybal will likely endure punishment for the rest of his life just because of his knowledge that he might have been wholly or partially responsible for a fellow employees death.  I can see no justice in punishing him further by inflicting industrial capital punishment by sustaining the discharge action.  I find that the Company established a reason for disciplining Mr. Roybal but did not establish just cause for terminating him.

An arbitrator can adjust penalties proposed in discipline and discharge cases.  Peabody Coal Company and UMWA, District 11, Local 2121, Arb.  Rev. Bd. Dec. No. 34 (9/13/76).  I will also fashion a remedy as part of the order.

B.

            I find nothing sinister in the meeting at the home of a member of the Local among the International's safety inspector and committeemen and Mr. Roybal, Mr. Hay, or others.  That the testimony and statements of Mr. Roybal and Mr. Hay were parallel in many instances and different in others is not extraordinary in my view.  Having tried many cases and heard many cases as an arbitrator and as an administrative law judge, I am accustomed to what goes into preparation for a hearing or a trial and find nothing much different in the nature of the testimony in this case as compared to the testimony in many others.  Similarities, conflicts, and identical testimony are common.  To some extent, the risk of bolstered testimony is minimized by the sequestering of witnesses as the Company successfully moved to do here at the outset of the hearing.

ORDER (AWARD)

            I hold and order that the grievance is sustained in part and denied in part.  Mr. Roybal shall be returned to work but compensation shall be suspended from the effective date of his termination made by notice on November 2, 1989 and for 30 days thereafter.  Mr. Roybal is awarded back pay beginning from the thirty-first day forward at straight time for the shifts he would have worked had he not been discharged.  Mr. Roybal shall lose no seniority or benefits because of his termination.  In short, the appropriate remedy is suspension without pay.  Further, Mr. Roybal shall not again operate a continuous mining machine until he is retrained

on operating the machine to include communication procedures. 

DATED this 18th day of January 1990

 

                                                                        ______________________________

                                                                        David K. Robinson, Arbitrator

CERTIFICATE OF MAILING

            I certify that I mailed the original or copies of this decision and of the two Appendix' and of the billing by first class mail, postage paid, on the 19th day of January 1990 as shown below.

 

                                                                        ______________________________

                                                                        Jerry Ann Kurth
                                                                        An employee of David K. Robinson

1.         Two copies to   BCOA-UMWA Coal Arbitration Service, c/o AAA, 1730 Rhode Island Avenue NW, #590, Washington, D.C. 20006;

2.         Wyoming Fuel Corporation, c/o Charles Gilliam,. Jr., Labor Relations Associates, Inc. P.O. Box 3021, Charleston, WV 25331;

3.         Art Mestas, UMWA District 15, Sub-district Representative, Route 3, Box 280, Trinidad, CO 81082;

4.         UMWA District 15, 6525 W. 44th Street, Wheat Ridge, CO 80033.

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