Pittsburgh & Midway Coal Mining Co. and UMWA, District 15 local 1332
BITUMINOUS COAL INDUSTRY ARBITRATION
UMWA, DISTRICT 15, LOCAL 1332 ) GRIEVANCE NO. 005-91TT; 006-91TT
and ) THEODORE A. TWITE,
THE PITTSBURGH & MIDWAY COAL )GRIEVANT
MINING CO., MCKINLEY MINE ) TOPIC: VACATION POLICY
Date of Hearing
Place of Hearing
December 9, 1991 Holiday Inn, Gallup, NM
David K. Robinson, J. D., 1500 E. Tropicana AVE STE 102, Las Vegas, NV 89119
Wally E. Bowman, Supervisor HR/LR
Roy P. Fernandez, Sub-District
Steven Feagins, Sec'y-Treasurer
Fritz Haller, Mine Manager
Steven Feagins, Sec'y-Treasurer,
Exhibits Received Into Evidence Cases Submitted by Parties
See Appendix A See Appendix B
NOTE: INASMUCH AS THE VACATION POLICY IS AT ISSUE, THE EXHIBIT OF THE POLICY IS INCLUDED IN FULL IN THE BODY OF THIS DECISION AS WELL AS IN APPENDIX A OF DOCUMENTARY EXHIBITS RECEIVED INTO EVIDENCE.
Joint Exhibit 4
Staggered Regular Vacation
Scheduling of staggered regular vacation will begin on November 4, 1991. The supervisor of each crew will be responsible for scheduling his/her crew.
The following guidelines will be followed in scheduling with no exceptions:
1) Weeks having observed holidays cannot be scheduled for staggered vacation. Those weeks are:
December 30, 1991-January 5
When a birthday holiday falls during the staggered regular vacation period, the Employee shall designate another day to take as a holiday after the scheduled vacation. Graduated vacation may be scheduled during the above closed-out weeks but only by crew seniority, the manpower rule [referring to the 15% rule in the following paragraph], and in accordance with other applicable scheduling guidelines. (Emphasis and comment added).
The manpower rule is a guideline whereby crew size is not to be diminished by more than 15% (approximate) on any given day through the scheduling of staggered regular vacations, graduated vacation, the election of paid contractual days, and all other absences. (Emphasis added).
2) Staggered regular vacation periods shall be scheduled so as not to interfere with efficient operations as determined by P&M and so long as not more than 15% of the crew elects to be off the same day (see manpower rule paragraph #1 above). Should there be a conflicting choice of vacation between two or more employees on a crew, the choice will be determined on a seniority basis. Vacation periods shall be scheduled in 7-day blocks beginning on Monday 12:01 a.m. through "Sunday 11:59 p.m. The two weeks (14 days) may be scheduled in a consecutive two week period or in separate one week periods. (Emphasis added).
3) The manpower rule will be administered by crew as follows:
Crew Size No. of Employees Off At One Time
12 or less 1
13 or more 2
4) The staggered regular vacation selections recorded on the crew's calendar will be documented by the Employee's signature for permanent record.
5) Seniority for scheduling purposes will be by crew. (Emphasis added).
6) If an Employee changes crew after the staggered regular vacation is scheduled, he/she will remain on that original schedule
7) Taking all staggered regular vacation days will be mandatory and the Employee will be responsible for scheduling such days with his/her supervisor not later than December 20, 1991, for the 1992 vacation year. The entire scheduling system depends on staggered regular vacation being scheduled in advance of those desiring to schedule graduated vacation. Employees that do not schedule their staggered regular vacation by December 20, 1991 will be assigned a vacation period by Mine Management. (Emphasis added).
1992 Graduated Vacation
Graduated vacation scheduling will be considered in the maximum number of employees per crew that can be on vacation or off work at one time. This scheduling will be done after the staggered regular vacation schedule is completed. (Emphasis added).
The following guideline will be followed in scheduling graduated vacation with no exceptions under normal circumstances. (Emphasis added).
1) Staggered regular vacation schedules must be completed and approved before graduated vacations scheduling can begin. (Emphasis added).
2) Once staggered regular vacation has been scheduled, graduated vacation may be prescheduled for the upcoming vacation year by seniority. For employees who desire to preschedule graduated days, the will be responsible for doing so not later than January 17, 1991. If there is a conflicting choice of graduated vacation scheduled prior to the prescheduling deadline, the choice will be determined by seniority. The approved dates will be final and employees will not be displaced at a later date by a more senior Employee. If the Employee elects not to preschedule graduated vacation days by the above deadline, he/she may schedule those days later in the year but only on a first-come first served basis (not by seniority) and in accordance with applicable scheduling guidelines. Any conflicting choice of dates scheduled after the January 17, 1991[sic] prescheduling deadline will be determined by who scheduled first. (Emphasis added).
3) No more than 15% of the crew (see paragraph #3 under Staggered Regular Vacation) can elect to be off the same day so long as the scheduling does not interfere with efficient operations as determined by P&M. The 15% limit is made up of those employees off work as explained in paragraph #1 (manpower rule) under Staggered Regular Vacation. (Emphasis added).
4) The scheduling of staggered regular vacation takes precedence over graduated vacation. Should there be a conflicting choice of staggered regular vacation and graduated vacation between two or more employees, the choice will be determined on the basis of who scheduled the staggered regular vacation. (Emphasis added).
5) Graduated vacation days shall be scheduled in blocks of three (3) or more unless there are only one (1) or two (2) days remaining in which case they will be scheduled in blocks of one (1) or two (2). Scheduling of one (1) day at a time will not be allowed unless only one (1) day remains. (Emphasis added).
6) Graduated vacation must be scheduled through the employee’s immediate supervisor. The minimum allowable time to request graduated vacation that has not been previously scheduled is 72 hours prior to the desired day(s). Approval for such requests will be given to the Employee a minimum of 48 hours prior to the desired day(s). The 48 hour and 72 hour time limits are based on scheduled days worked only and do not include days off nor paid Contractual days and unpaid days. Under normal circumstances, only requests made prior to the 72 hours notice limit and during the employees scheduled work hours will be considered.
7) The supervisor on each crew will be in charge of scheduling. (Emphasis added).
8) Under normal circumstances, once graduated days are authorized and scheduled, they cannot be changed.
9) Seniority for scheduling purposes shall be by crew. (Emphasis added).
10) If an Employee changes crew after the graduated vacation is scheduled, he/she will remain on that original schedule.
11) If, for any reason, the Employee is unable to schedule all graduated vacation days, he/she will be paid for them at the end of the year in lieu of taking the day(s). (Emphasis added).
ISSUE FOR RESOLUTION
DID THE COMPANY VIOLATE THE COAL WAGE AGREEMENT OF 1989, WHEN (1) IT UNILATERALLY IMPLEMENTED A STAGGERED REGULAR VACATION POLICY FOR 1992; (2) INCLUDED A PRESCHEDULING PROCEDURE FOR GRADUATED VACATION DAYS; THE PROCEDURE BASED, IN PART, ON THE 15% MANPOWER RULE, CREW SIZE AND CREW SENIORITY; OR (3) BECAUSE OF OTHER PROVISIONS OF THE NEW POLICY? IF, "YES," WHAT IS THE APPROPRIATE REMEDY
Provisions of Coal Wage Agreement of 1989 (CWA 1989 or Agreement) between The Pittsburg & Midway Coal Mining Co. and the International Union United Mine Workers of America cited by the parties or implied as at issue
Article 1A - SCOPE AND COVERAGE
Section (d) Management
of the Mine
The management of the mine, the direction of the working force and the right to hire and discharge are vested exclusively in the Employer
Article XIII - REGULAR VACATION
Section (a) Annual
An annual regular vacation of fourteen (14) consecutive days shall be the rule of the industry. . . . . (Emphasis added).
Staggered Regular Vacation
Should . . . vacation period shall be scheduled by the Employer at the times desired by individual Employees so long as this will not interfere with efficient operations as determined by the Employer and so long as this will not interfere with efficient operations as determined by the Employer and so long as not more than 15 percent of the work force at a mine elects to be off on the same day. Should there be a conflicting choice of vacation between two or more Employees, the choice will be determined on a seniority basis. Each Employee shall have as much advanced notice of his scheduled vacation as practicable. Employees, at their option, may take vacation in 1-week segments. (Emphasis added).
Section (e) Floating
For the calendar years of . . . each active Employee with one year of continuous employment with the Employer shall be entitled to four (4) additional days of paid vacation. There shall be no Floating Vacation Days from January 1, 1993 until the expiration of the Agreement. (Emphasis added).
. . . .
Floating Vacation Days will be taken in accordance with one of the following options, which shall be determined at the election of the Employer. If the elects the Christmas-New Year's Shutdown Period . . . otherwise Floating Vacation Days will be taken on a daily basis for that year . . . . (Emphasis added).
. . . .
(1) Daily Basis
Floating vacation days shall be taken either on a consecutive or
nonconsecutive day basis at such times as desired by the Employee so long
as approved by the Employer at least 30 days in advance, and in
accordance with the principles of Section (c) of this Article.
Subject to said notice and approval, an Employee shall not be denied the
opportunity to take these days at some time during the calendar year in which
they are due. (Emphasis added).
Article XIV - GRADUATED VACATION
Section (a) General
Any Employee who has performed . . . shall be entitled to the corresponding additional vacation days each year with pay subject to the following . . . . (Emphasis added).
Section (g) Scheduling
and Pay in Lieu
Time for taking these additional days . . . shall be determined between the Employee and the Employer but will be taken in the calendar year in which they are due unless the Employer and Employee agree that the latter may elect to be paid in lieu of taking them. Subject to such determination and said election, an Employee shall not be denied the opportunity to take these days at some time during the calendar year in which they are due. (Emphasis added).
ARTICLE XVII - SENIORITY
Section (a) Definition
Seniority at the mine shall be recognized in the industry on the following basis: length of service and the ability to step into and perform the work of the job at the time the job is awarded.
ARTICLE XXVI - DISTRICT AGREEMENTS
Section (b) Prior
Practice and Custom
This Agreement supersedes all existing and previous contracts except . . . and all local agreements, rules, regulations, and customs heretofore established in conflict with this Agreement are hereby abolished. Except where abolished by mutual agreement of the parties, all prior practice and custom not in conflict with this Agreement shall be continued . . . .
POSITIONS OF THE PARTIES
The Company stated its position in the following manner.
The Company has the right unilaterally, under the WCWA 1989, to implement a staggered vacation policy. The guidelines used are reasonable, are not in conflict with the WCWA 1989 and are reasonably related to a legitimate Company objective.
The weight of arbitral authority supports the Company's right to schedule regular and graduated vacations. The guidelines do not deprive any classified Employee of her/his vacation entitlement.
A task group of 5 management employees worked diligently over a 9 month period to devise the staggered vacation policy and the guidelines for administering the policy.
Scheduling by crew is the most effective and efficient method for McKinley Mine's type of operation. There are 38 crews operating over a 28 square mile active mining area. Obviously, it is inefficient to move employees around from one crew or work location to another to fill vacant positions. Keeping the shuffling to a minimum is essential for an efficient operation. Under normal circumstances, each crew can operate 15 to 18% short of full manning without having to fill vacancies with employees from other crews. Scheduling by crew was designed by the task force to maximize efficiency. Other methods of scheduling such as by shift, classification, or total work force would be devastating to individual crews depending upon where seniority falls. Instead of one or two employees being gone daily, a Supervisor could have a larger percentage of her/his crew gone through any other method of scheduling and there would be the constant movement of personnel to fill vacancies. When you have the integrity of the individual 38 crews broken up where larger percentages of employees are gone, operating efficiency is vastly diminished.
Management's concern for the constant movement of personnel from one crew (or work location) to another was the reason for the adoption of the requirement of taking graduated vacation days in blocks rather than on an individual day basis. Taking of graduated vacation days in blocks of days lessens the number of individual day absences and decreases the number of times a supervisor will have to move personnel to fill vacancies. Management fills it is much more efficient to fill a temporary vacancy for three or more days at a time with one person that it is to fill three or more temporary vacancies individually and most likely with different individuals. When you decrease the number of times a supervisor has to fill a temporary vacancy on a daily basis, the closer you get to optimum efficiency.
Scheduling regular vacation by crew and scheduling graduated vacation in blocks of days is more efficient for the individual supervisor. The scheduling method eliminates a tremendous amount of time and coordination between supervisors and allows the supervisor more time to devote to the operational needs of the business.
And, the scheduling method does not eliminate any of the employee’s contractual rights or benefits. Management has not taken away and does not have the ability to take away rights for all regular vacation, graduated vacation, floating vacation, or personal/sick days. Testimony will show that there is available time throughout the year for all employees to get all their vacation entitlement.
Management is taking more control of how and when regular and graduated vacation is taken in order to more efficiently operate the mine. No contractual provisions has been violated. Management has the right to manage the mines and direct the fork force under Article 1A. Management has the right to and did initiate a staggered regular vacation under Article XIII(c).
Although before the new policy was adopted, an Employee wanting to take a day off merely called in before the shift, the practice did not amount to a binding past practice and custom. The Management of P&M has merely changed the requesting process under the rights it retained to manage the mines and direct the working force.
In the new policy, conflicting choices of days are resolved by seniority.
Article XIV (g) requires that "Graduated Vacation shall be determined between the Employee and the Employer" and that requirement is carried through in the new policy. The requirement has not been interpreted to mean that an Employee has the unrestricted right to take Graduated Vacation Days as or when the Employee alone desires. The days requested must also be approved by management according to the weight of arbitral authority.
Nothing done by the Company in adopting and implementing the new vacation-scheduling program violates the Agreement and no act in adopting and implementation was arbitrary, capricious, or discriminatory.
The Local Union has the burden of proof. The Union cannot meet the burden. The grievances should be denied.
The guidelines and rules implemented by the Company are, taken as a whole, arbitrary, capricious, and unreasonable. Management abused its right under Article IA (d).
The guidelines that are to be used will automatically reject vacation days based on the percentage rate [15%] applied against crew size and the manpower rule as defined in the guidelines and the Agreement.
The Company does have the right to elect a staggered vacation policy. But the policy adopted by the Company and expressed by Mike Provenza was based on management's need to control scheduling of graduated vacation.
The practice for the past 15 years at the McKinley Mine for scheduling graduated vacation days was not the arbitrary imposition of prescheduling but, rather, a call in system made by the Employee before the Employee's shift began. The Company has violated a binding past practice.
The grievances should be sustained and a cease and desist order should be issued.
SUMMARY OF TESTIMONY ELICITED
Grievant Ted Twite has been at McKinley Mine for 10 years and at P&M's Edna Mine for 5 years before starting at McKinley. Ted has held many Union positions including that of President of the Local. In his recollection and experience, the policy had always been that when an Employee wanted to take a graduated vacation day, the Employee called into his supervisor, asked for, and got permission to take the day off. During his experience, nobody from the Company talked to him or told him about any alleged problems about the call in method or absenteeism.
T. C. Tso has been president of the local for over 2 years. Mr. Tso is also on the Mine Committee. During his incumbency, no person from the Management told or suggested to him that there was any problem connected with graduated vacation days or mentioned any problems concerning efficiency. The witness knew of no inputs requested by the Company from the Union before the Company adopted the new guidelines. He does recall talking to Ray Daugherty of the Company's Task Force in about June or July 1991. When asked about staggered vacation and scheduling vacations, Mr. Tso told Mr. Daugherty that he thought continuous production would be more efficient but that the Local would oppose any other changes to vacation policies.
The Company usually asks for Union input. Mr. Tso corroborated that in the 6 years he has been familiar with graduated vacation scheduling, the Employee merely called in before the shift to get approval for the day off. The employees have come to rely on the call in method. The method is a binding past practice Mr. Tso said. In a letter he received from Mike Provenza (Exhibit Un. 1), the Company confirmed the call in practice. The Company violated its past practice. Mr. Tso confirmed that the call in policy occurred during the time when the two-week shutdown regular vacation method had been in use.
Mr. Tso outlined the problems he sees with the new policy and his beliefs as to their being violations of the WCWA 1989 and was particularly opposed to the 15% rule being applied at the crew level. He confirmed that he [T.C.Tso] had told the Company that the Local would prefer staggered regular vacation.
Local Vice President Dan Thompson testified. He is a 16-year Employee and is on the Mine Committee. He corroborated how the call in method worked for taking graduated vacation days in the pat. Mr. Thompson had already submitted his prescheduling at the date of the arbitration hearing. He and others on the crew in groups did their scheduling. Seniority prevailed. He did not get the days he wanted but got the best for him of what was left open. He found out then that the staggered vacation had to set first before any graduated vacation scheduling would be made.
Mr. Thompson filed a step one grievance when implementation began. Any testimony as to the matter of implementation was stricken since it would be related to a separate grievance not before this arbitrator. The arbitrator noted that he was well aware that there may be implementation problems but was dealing only with the two grievances at hand.
Steve (Sarge) Feagins was called as a Union witness. Mr. Feagins is the Secretary-Treasurer of UMWA District 15. Mr. Feagins received a copy of the final guidelines during Step 3 of the two grievances. Mr. Feagins dealt with the 15% rule and numbers of graduated vacation days. He believed that based on figures he was given from the monthly check offs and from Wally Bowman; there are 345 graduated vacation days in 1992, 692 floating vacation days in 1992, and about 8,359 days of regular vacation.
By examining crew sizes (Union Exhibit 1), the witness noted that in the small crews of 5, if even one man were given a day off, the 15% rule set by the company's definition and by the WCWA would automatically be violated because the absence would be 20% (there are 3-five man crews). Even in the 6-six man crews, if one man were off on vacation there would still be a violation of the 15% rule as to that crew since 16 2/3% would be absent.
Pointing to the mandatory regular vacation scheduling to be completed not later than by December 20, 1991, the witness noted the additional provision that failure to schedule would mean that the Company will assign a vacation. In the opinion of the witness, the provision violates the Agreement (Article XIII[c]) since the Company assigns the vacations.
The precedence given to staggered regular vacation over graduated vacation given in the policy violates Article XIV (g) in the opinion of the witness. As to the block scheduling of graduated vacations, Mr. Feagins said that was also a violation.
As to the provisions regarding changing crews, there could be a violation. In a larger crew, if 2 employees were off in the same time (largest crew is 17 and 2 off = 14%) and one of the crew were retained in her/his former crew for scheduling (paragraph 10, 1992 graduated vacation, Joint Exhibit 4) there are built in problems with the company's definition of the 15% rule.
Mr. Feagins testified that if the total days given as 8,389 is taken into consideration alone and 248 available days (52 weeks x 5 working days per week - 12 contractual holiday days), there is far less than 1% of the work force out on all days, making it relatively easy for the company to make running of the mine efficient.
On cross-examination, Mr. Feagins acknowledged that efficiency of the mine was a determination to be made by management. No, Mr. Feagins acknowledged, nothing in the policy would imply that all contractual earned and regular day vacations could not be scheduled during the year. Yes, in the company's definition of the 15% rule, the word "approximately" does appear. However, 15% of the work force is the contractual rule and not 15% of the crew size as expressed by the Company in its policy. Yes, in the guidelines the 15% guideline might be met but there are 8 of your crews [5 and 6 person crews] where it is possible that each member of the crew could not get all her/his contractual days and where the Company's own 15% rule would not be met. The Articles don't allow precedence of one form of vacation over the other. No, no contractual days are directly taken away in the language of the new policy. However, if a member of a crew has 10 days graduated vacation remaining and there are only two weeks remaining in the calendar year, for example, that member would not be able to get in all his earned graduation days off. The mandatory prescheduling in the new guidelines is for regular vacation days and for graduated days [but only up to January 17, 1992 for mandatory scheduling]. If the Employee does not elect to preschedule graduated vacation days by January 17, 1992, the Employee may still schedule graduated vacation days but only on a first come and first serve basis (paragraphs 1 and 2 of 1992 Graduated Vacation, Joint Exhibit 4). Personal and sick leave days are included in the 15% of the work force rule stated in the Agreement but are not considered in the company's staggered vacation policy.
Fritz Haller, McKinley Mine's Manager, testified about the competitive conditions in the marketplace and the need for increased efficiency. The staggered vacation policy would increase efficiency. Local union officials also wanted a staggered vacation and continuing operation. The P&M's Kemmerer Mine has successfully operated year round for some time. Early in 1991, Mr. Haller set up a task force to study the matter.
No, there has been no interruption in production or delivery of coal because of scheduling of vacation days even before the new policy since Mr. Haller has been in charge. Mr. Haller acknowledged that graduated vacation scheduling was not brought up by management at negotiations for the 1989 Agreement since there had been no problem. According to Mr. Haller, the Local's officers had several opportunities to give input to the new policy had they wanted to. Copies of the first draft were given the local on October 14, 1991. The major change to the final draft was that if an Employee either refused to schedule or merely neglected to schedule graduated vacation days, the Company would schedule for him.
Ray Daugherty, Maintenance Foreman (Shop) testified. He was also a member of the Task Force. He has been at the McKinley Mine since 1983. Company Exhibit 4 (6 pages) was received. Mr. Daugherty explained the considerations and criteria used by the task force. The group met collectively 10 times and individual members worked on specific matters. Previous absenteeism was one of the factors looked at. The policy in effect at the Kemmerer Mine of P&M was also taken into consideration. Other Companies were also contacted concerning their experiences about continuous operation and vacation policies. Mr. Daugherty explained the hand written figures on the last page of each of 1989 and 1990 schedules of Exhibit 4. In considering continuous operation as compared to an annual 2-week shutdown, one of the major factors against the staggered was that during the shutdown period of the 2-week miner's holiday necessary major repairs could be made. But, under the staggered vacation and continuous operation method, we must schedule around major repairs. Mr. Daugherty admitted that he had no problems scheduling Employees for the graduated vacation days even before the new policy was adopted.
Mr. Daugherty had an informal meeting with President Tso of the Local. The meeting lasted about 45 minutes. He cannot remember many details about discussions about graduated days or scheduling. Tso said, in effect, yes we want staggered but do not want scheduling of vacation days.
Mr. Daugherty said the task force recommended the staggered vacation (no shut down of production) to get more uniformity as to safety and environmental matters; for the convenience of employees; because employees have more choice for regular vacation and could split vacations; because P&M would attain more efficient manning and supervision of manning: P&M could take more control of over single day absences: and the method would create more efficiency. It was also thought that the mine could produce about 300,000 more tons of coal per year by switching to a continuous operation.
Larry J. Pawlowski testified. Mr. Pawlowski is Supervisor of Production and was a member of the task group. For efficiency, P&M needed more control over vacation scheduling. In order to meet the 15% rule and given that our personal and unexcused absenteeism has been 6 %, we were looking at about a range of available days for scheduling to fit into our crew manning method. Finally, by considering the total work force, we came up with about 11% permissible earned days off as a maximum percentage to retain efficiency and still fit within the 15% rule. Our mine is scheduled by crews and we have a relatively stable work force. Graduated vacation pay was considered as secondary, for scheduling purposes, to the regular vacation. An Employee can be paid in lieu of graduated if an Employee elects to receive pay or simply fails to schedule whereas no in lieu payment is allowed for regular vacation days. It made sense to schedule vacation days in blocks because it allows the Employee more days, allows us more advance knowledge of manning our crews instead of confronting a day here and a day there. Predictable manning is important to efficient operation. As spread out across miles as we are, it is time wasting to shuffle people around to fit one day vacations. Mr. Pawlowski said there are actually 40 crews with 38 supervisors since there are two staggered crews.
Michael A. Provenza, Manager of Production, testified. Mr. Provenza came to McKinley in May 1991 and was at the Kemmerer Mine from 1983 to 1988. While he was at Kemmerer, a staggered vacation policy was implemented as a policy. Certain portions of the policy were then negotiated into the Kemmerer Mine's Labor/Management Agreement.
Wally E. Bowman, Supervisor Human and Labor Relations, testified for the Company. He was also a member of the Task Force. Mr. Bowman testified about special communications to Union officers and Supervisors after the policy was adopted. Company Exhibit 6 was introduced through Mr. Bowman. The records show that Ted Twite was a participant in a toolbox meeting given by his supervisor.
The common law of the industry concerning vacation scheduling has evolved from the Agreement and the many different variations on vacation scheduling that have been resolved through arbitration. The role of the arbitrator is limited to interpreting the labor/management agreement as negotiated between and accepted by the parties. The arbitrator may not change the agreement.
Three types of contractual days off are involved in the Agreement's vacation design: regular annual vacation days, floating vacation days earned for continuous employment and graduated vacation days earned for continuous employment. Here, the Company elected, as it had the right to do, to change from the two-week summer shutdown to continuous production and a staggered regular vacation period beginning in the calendar year 1992.
While the matter before me deals primarily with regular and graduated vacation days, it is influenced, to some extent by floating vacation days. Floating vacation days are referred to indirectly in the P&M plan in its declaration of its manpower rule:
The manpower rule is a guideline whereby crew size is not to be diminished by more than 15% (approximate) on any given day through the scheduling of staggered regular vacation, graduated vacation, the election of paid contractual days, and all other absences. (Emphasis added).
The design in the WCWA and specific times for taking the three separate different vacations types is as follows:
ARTICLE XIII - REGULAR VACATION
(a) Annual Vacation
An annual regular vacation of 14 consecutive days shall be the rule of the industry . . . . (Emphasis added).
(c) Staggered Regular Vacation
To . . . the Employer may . . . operate its mine without interruption and schedule regular vacations of fourteen days for each Employee during the calendar year. (Emphasis added).
Should . . . vacation periods shall be scheduled by the Employer at the times desired by individual Employees so long as this will not interfere with efficient operations as determined by the Employer and so long as not more than 15 percent of the work force at a mine elects to be off on the same day. Should there be a conflicting choice . . . between two or more Employees, the choice will be determined on a seniority basis. Each Employee shall have as much advance notice of his scheduled vacation as practicable. Employees, at their option, may take vacation in 1-week segments. (Emphasis added).
(e) Floating Vacation Days
(1) Daily Basis
Floating Vacation Days shall be taken either on a consecutive or nonconsecutive basis at such times as desired by the Employee so long as approved by the Employer at least 30 days in advance, and in accordance with the principles of Section (c) of this article. Subject to said notice and approval, an Employee shall not be denied the opportunity to take these days at some time during the calendar year in which they are due. (Emphasis added).
ARTICLE XIV GRADUATED VACATION
(d) Scheduling and Pay in Lieu
Time for taking . . . shall be determined between the Employee and Employer but will be taken in the calendar year . . . unless the Employer and Employee agree . . . be paid in lieu of taking them. Subject to such determination and . . . election, and Employee shall not be denied . . . . (Emphasis added).
In early 1991, the Company organized a task force of company personnel to study adopting continuous operation and to evolve a scheduling program for vacations. To a slight extent, the Local Union was involved in the study. Mr. Daugherty, of the task force, talked to Mr. Tso, President of the Local. The local had, during mine committee [aka mine communication] meetings, suggested adopting continuous operation and staggered vacation. Mr. Tso made clear that while the Local would prefer the adoption of staggered regular vacations, it didn't want anything else. In early October, a draft of a proposed policy change was circulated to the Local. The policy went through a minor change and was then adopted. When the policy was announced at one toolbox meeting on October 24, 1991, the two grievances at issue here were filed. The substance of the grievances challenges the length of prescheduling and the policy.
As grievance 005-91TT acknowledges, the Company had the unilateral right, regardless of past practice, to change from an annual shutdown method of taking regular vacation to a continuous operation and staggered regular vacation. Article XIII(c).
In looking at the relationship between the Employer and the Employee in the Agreement's description of staggered regular vacation, floating vacation, and graduated vacation, the following elements stand out:
1. Staggered regular and floating vacation days are expressly conditioned: (a) after an Employee has expressed a desire for a choice of date; then (b) on the Employer's determination as to whether the dated of contractually mandated vacation desired by the Employee will not interfere with efficient operations, the efficiency factor determined solely by the Employer, and, finally, (c) if the date is acceptable to both Employer and Employee, then the choice is approved so long as not more than 15 percent of the work force at a mine elects to be off on the same day.
2. Conflicting dates of choices between Employees as to staggered regular vacation and floating vacation days are resolved by seniority.
3. Only floating vacation day periods of the three types of vacation periods have an enumerated notice time. The Employee must give 30 days notice to the Employer before the Employer's duties of approving and checking efficiency and percentage begin.
4. The Employee has the option of taking staggered regular vacation days in 1-week segments [the regular vacation is 14 consecutive days measured as in Article XIII (b)(1)].
5. Floating vacation days shall be taken either on consecutive or nonconsecutive basis, as desired by the Employee, subject to the 30-day notice to the Employer, approval by the Employer according to its efficiency determination and subject, further, to the 15% rule.
6. Graduated vacation days carry no advance notice condition or statement concerning whether or not the days shall be consecutive or nonconsecutive. The time for taking the days is as determined between the Employer and the Employee.
7. Staggered regular, floating, and graduated vacation days shall not be denied an Employee during the calendar year.
8. If both the Employee and the Employer agree, graduated vacation days may be worked by an Employee who agrees to take pay in lieu of the earned time off.
Both Company and Union submitted several arbitration decisions dealing with vacations and vacation policies.
I begin with a consideration of binding past practice. The Union argued that the policy concerning graduated vacation was unlawful for several reasons including a violation of a binding past practice. Of course, as the grievance noted, the Company's decision to switch from a regular shut down annual vacation to staggered can be done regardless of past practice. Article III(c). The past practice at this mine was for an Employee to call in at any time before his shift to ask for a graduated vacation day. Both parties agreed that the practice was long standing. Company witnesses testified they had no problem scheduling graduated days before the adoption of the new policy. The question is, was the long-standing practice also a binding past practice?
Under Article XXVI (b), a prior practice shall be continued unless it is conflict with the Agreement. The Company argued that its permissive allowance of such a short call in time did not rise to the level of a binding past practice concerning scheduling graduated vacation days off. The Union urged that the policy was a past practice and that the Company could not unilaterally change the policy. The Local thought a binding settlement agreement has been signed in the past concerning the practice but no settlement agreement was found.
In the Bituminous Coal Industry, Arbitration Review Board Decisions 78-2 and 3 are precedent setting concerning binding past practice. In summary, the party urging that a past practice is binding must show: (1) proof of existence of a past practice, its scope; and that the practice is unequivocal, clearly enunciated, and readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties; (2) elements of proof include, among other things, the nature of the practice and how it came into being or whether the way of doing things simply occurred by either parties neglecting to assert a right or authority; and (3) whether there is conflict with the Agreement.
No analysis of binding past practice can overlook the language of Article XXVI (b) abolishing all local customs in conflict with the Agreement. Article 1A(d) grants the Employer the exclusive right to manage the mine and direct the working force. However, the right is confined by many negotiated limitations expressed in other Articles of the Agreement. The 1A(d) right may not be exercised arbitrarily, unreasonably, capriciously, or in a discriminatory fashion and must have a reasonable management objective. I find that the past practice did not rise to the level of being a binding past practice. The "call in" practice at the McKinley Mine was permissive and was not unequivocally accepted by the Employer. The informal practice is also in conflict with P&M's Article IA (d) rights to manage the mine and direct the work force. The Company had the retained right to impose limitations on calling in for taking earned graduated vacation days off. The reasonableness of much of the new policy will be tested later in this discussion.
Turning now to the new P&M 1992 policy for staggered vacation including two major sections: prescheduling and other scheduling of staggered regular and scheduling of graduated vacation days. The Company's task force assigned to formulate the policy took into consideration many elements including, for illustration but not limitation, past absenteeism at the mine for excused personal and sick leave days taken and unexcused absences to arrive at a percentage applied to the total work force; anticipated graduation days earned, floating vacation days earned, and mandatory regular staggered vacation days [staggered regular days taken in not less than one week segments under the Agreement]. The task force then converted the various kinds of days off into percentages for development of guidelines. The task force then redefined the 15% limitation rule of the Agreement and created a version of the 15% limitation rule as applied to the Company's crew manning method used at the huge McKinley, New Mexico surface mine. Judgmental considerations of efficiency were necessarily interwoven into the development of the new policy. Although Company witnesses agreed that they individually and for the units they supervised had no problem dealing with the past method, they participated in adopting a significantly different overall new vacation plan. Undoubtedly, absenteeism even in the face of an absenteeism policy, and the growing number of graduated and floating vacation days accumulated by a relatively stable work force had to be considered in the development of the plan. Among other things, the task force also looked at experiences gleaned at other mines that had adopted a continuous production method of operation. As one of the goals of the new vacation policy, the Company sought to obtain "predictable manning" and to eliminate inefficient shuffling of employees within the 28 square mile active mining area. Indeed, the Company has the exclusive right under the agreement to do what it believes is reasonable in the interests of efficiency. The plan produced is a methodical, well thought out industrial plan. However, the test is whether all or some of the policy comports with the Agreement.
While only two grievances were filed, those at hand, when the Company began implementing its new plan in October 1991, there apparently was a storm of protest. The Union, through the Grievant, claims the new policy violates the Agreement. Before turning to the terms and conditions of the 1992 P&M Policy, I consider together the tenor of arbitral authority on issues affecting the conditions of the 1992 P&M policy and the WCWA 1989 and specific provisions of the P&M Staggered Vacation Policy for 1992.
As stated before, it is generally held by arbitrators that management has the prerogative to make schedules to control manning and efficiency unless its conduct is arbitrary, capricious, discriminatory, or unreasonable and if a legitimate management purpose is involved. P&M argues it has the right to adopt the substantial changes collectively comprising the new plan as its reserved management prerogative and that no change violated the Agreement.
I next consider the seniority changes created in P&M's new policy. The seniority unit in the Bituminous coal industry is generally considered on a mine wide basis according to the definition of seniority. Article XVII (a). Underlying the fact that the definition is in a specific Article is the fact that the Article is a product of negotiation between the parties. The seniority type in the Agreement is sometimes referred to as Modified Seniority clause because both seniority and the minimum ability to step into and to the work of the job are both necessary elements, not seniority alone. A seniority preference is in the Agreement's vacation scheme to settle conflicts between two or more employees who schedule the same date. Seniority preference also appears in the layoff and realignment design negotiated into the Agreement.
Seniority preference is given also in P&M's policy but on a "crew unit" instead of a "mine wide unit." Nowhere in the Agreement is anything stated or implied that there are seniority units allowable other than at the mine wide level. The mine wide work force limitation imposed on the Company's rights as to the seniority unit is a part of the negotiated Agreement. Notwithstanding the undeniable increases in efficient manning the Company could achieve if the new plan were approved in whole, the Company overreached its Article IA (d) rights in the Agreement and violated the Agreement by adopting "crew units" for seniority.
I now turn to the manpower rule. The Manpower rule first appears in the Agreement at Article XIII(c) Staggered Regular Vacation; then by reference to Article XIII(c) in floating vacation days, Article XIII (e)(1). The manpower rule is not directly or by reference included in the Article for Graduated vacation periods. The 15% rule negotiated into and enunciated in the Agreement is, "[V]acation periods shall be scheduled by the Employer at the times desired by individual employees so long as this will not interfere with efficient operations as determined by the Employer and so long as not more than 15% of the work force at a mine elects to be off on the same day." (Emphasis added).
The modified 15% rule adopted by P&M differs significantly from the Agreement’s 15% Rule. Under P&M's modified 15% rule applies at the level of application of "crew size" and on any given day, whereas the Agreement's 15% rule applies to 15% of the work force at a mine."  The P&M language is more concise and inclusive than the language negotiated into the Agreement. However, by adopting "crew size" instead of "work force at a mine," the P&M language restricts the vacation election options allowed to employees, particularly employees working in P&M's smaller 5 and 6 man crews. By also tying the application of the 15% rule to "any given day," the plan might have the effect of denying an Employee earned contractual days off during the year. Indeed, the P&M plan is a well thought out industrial plan designed to achieve operational efficiency. But. As an arbitrator, I cannot change the language of the negotiated Agreement to fit the perceived needs for operational efficiency and allow P&M to do indirectly what it cannot do directly. By tying the 15% rule to crew size and any given day, an Employee of a 5 or 6 man crew could theoretically never get a vacation, notwithstanding the Agreement's requirement that staggered regular, floating, and graduation days shall not be denied an Employee during the calendar year.
I find that P&M's modified 15% rule, as well worded and conceived as it is, is arbitrary, and goes beyond and violates the Agreement.
For all three types of earned vacations, the Employee, acting alone, cannot decide when to take a vacation. There must be an act of both the Employer and the Employee. But, by the language of the joint acts required, it is clear that the ultimate prerogative to schedule the day off rests with the Employer. I turn now to prescheduling.
It is well settled by the common law of the industry that a prescheduling requirement is within management's rights and that requiring increments of consecutive days is permissible.
Here, P&M's new policy for staggered regular vacation bars staggered regular vacations during weeks having observed vacations except by crew size and the P&M 15% rule; ties the scheduling to P&M's efficiency determination [but based on the P&M crew size unit]; requests but does not require prescheduling to be completed by December 20, 1991; sets out seven day block scheduling; sets out a seniority method for resolving conflicting days [albeit, seniority within crew]; and calls attention to the requirement that taking the regular vacation is mandatory. The staggered vacation policy then gives the Company the power to schedule the staggered vacation for 1992 by assignment if the Employee fails to schedule her/his 1992 regular vacation by December 20, 1991.
A problem with P&M's staggered vacation policy, as written, is that seniority turns on "crew" instead or "mine wide work force" as discussed before; establishes an early cut off for scheduling that may be unreasonable, and provides for the automatic assignment of regular vacation days by P&M for those employees who do not schedule their regular vacation days by December 20, 1991.
The requirement that scheduling for staggered regular vacation for the following calendar year 1992 is completed 10 days before then end of 1991 is stringent. However, the weight of arbitral authority grants the Employer the right to schedule within the framework of Article 1A(d)'s exclusive right to manage the mine. P&M’s Article 1A(d) right is limited by the test of whether the adopted practice is arbitrary, unreasonable, discriminatory, or capricious. Scheduling the following year's vacation as far in advance as P&M wants could amount to as much as one year advance scheduling for those employees who may want vacations in December 1992. However, the "far in advance prescheduling" might actually be beneficial to some employees, assuring them of the time off wanted. Many employees may already have taken the opportunity to obtain the time they wanted.
But the unreasonable nature of the policy is that the staggered vacation choice for all employees is limited to whatever is elected by December 20, 1991 for calendar 1992. No choice is left for the Employee who forgetfully or deliberately elects not to preschedule. Any employee who does not schedule by December 20, 1991 is, under the P&M policy, automatically assigned a vacation period by P&M. The Agreement requires that the regular staggered vacation shall be scheduled by the Employer at the times desired by the individual Employee, subject to the Company's determination as to whether the time will interfere with efficient operations and subject to seniority preference in case of conflicting choice of day. Floating vacation days (not expressly delineated in the P&M Policy but implied in the definition of the 15 % rule devised by P&M) carry the same provisions for scheduling as do staggered regular vacation days with the exception that the Employee is required to give 30 days notice.
A problem with paragraph 7) of P&M's plan for staggered regular vacations is P&M's declared right to assign the vacation to an Employee who does not preschedule by December 20, 1991. The assignment extinguishes whatever the Employees desire for a vacation time may have been. In effect, the Company makes the choice for the Employee. The assignment cut off date arbitrarily leaves too little latitude for an Employee who did not preschedule for whatever reason. I am mindful that some employees may deliberately be uncooperative and may not schedule. Notwithstanding, the Company has a "due process" duty periodically to notify the Employee, particularly near the end of a calendar year, that time to take a regular vacation requires the Employee to express a desire. After a due process notice has been ignored repeatedly, the Company could then reasonably assign the date without that Employee's input and, in my opinion, not be in violation.
I find that the policy for staggered regular vacations for 1992 goes beyond the scope of the Article 1A(d) right reserved to the Company and violates the WCWA 1989.
I now consider the Graduated Vacation segment of the P&M 1992 Staggered Vacation Policy. P&M McKinley Mine has the right to implement a prescheduling plan, subject to the limitations that the plan not be arbitrary, capricious, discriminatory, or unreasonable. It is a proper exercise of management discretion to seek completion, as nearly as is possible, of the prescheduling of staggered regular vacation day before prescheduling graduated vacation days (Paragraph 10 of Graduated vacation scheduling, Joint Exhibit 4). The regular vacation days are in 7 day segments whereas the graduated vacation days depend upon a particular employees longevity and can vary from as little as 1 day to as many as 13. Although P&M states at paragraph 4) of its graduated vacation policy, "The scheduling of staggered regular vacation takes precedence over graduated vacation," I reject the Union's argument that P&M believes one kind of earned vacation is more important than another. The statement expresses nothing more than an administrative scheduling method and not a policy statement about differing importance of earned vacation days. P&M is surely aware that no earned vacation day can be denied the Employee during a calendar year.
Paragraph 2) requires prescheduling of graduated days not later than January 17, 1992; sets out a seniority based plan to deal with conflicting choice; denies bumping to senior employees who do not schedule by January 17; and gives an Employee the right to omit prescheduling but to have available to him days left over on a first come-first served basis. Paragraph 2), while a significant departure from the nonbinding practice of the past does not violate the Agreement unless there is any tie to seniority by crew size instead of the mine wide work force.
Paragraph 3) does violate the Agreement since it is based on P&M's stated version of the 15% rule and is tied to crew size not to the mine wide work force.
Paragraph 4) is confusing about who would be awarded the day in case of a conflicting choice of staggered regular and graduated vacation days. Time for taking graduated vacation days shall be determined between the Employee and the Employer according to Article XIV (g) of the Agreement. Although there is no mandatory consideration of seniority preference in case of conflict as in the Agreement's scheme for staggered regular and floating vacation days, generally seniority preference enters into the determination between the Employer and the Employee. If paragraph 4) is meant to give seniority preference to the person who scheduled the staggered regular vacation first in case of conflict, then it should plainly say so. If seniority is the determining factor, the provision violates the agreement if crew size is the level of comparison or does not violate the agreement if mine wide seniority is the determinant. I believe that whenever there is a conflict between two or more employees for days scheduled, if staggered regular vacation and floating vacation days are scheduled back to back, that the more senior Employee should get preference regardless of which type of vacation is involved. However, if a more senior Employee sleeps on her/his rights and does not use the time to schedule in a timely fashion, he/she rightfully loses seniority preference for the day picked by a junior Employee.
Block day scheduling for Graduated Vacation is the topic of Paragraph 5). Block day scheduling does not violate the agreement. Paragraph 6) does not violate the Agreement. Paragraph 7) does not violate the agreement. Any discriminatory conduct by a supervisor in scheduling may always be grieved. Paragraph 8 is reasonable and does not violate the agreement.
On the other hand, paragraph 9) of Graduated Vacation Policy violates the Agreement as discussed before because seniority is crew based instead of being based on the mine wide work force.
Paragraph 10) is a puzzle since it is difficult to foresee how it would work or what "schedule" is being referred to by the draftsman. If the "schedule" referred to is a seniority based schedule, then paragraph 10) would violate the Agreement as discussed before.
Paragraph 11) violates the Agreement. Article XV (g) makes plain that pay in lieu requires agreement between both P&M and the Employee agree that the Employee may elect to take pay in lieu of the graduated vacation day(s). Section (c) of Article XV also makes clear that the days are to be taken in the calendar year and that the Employee shall not be denied the days, subject only to the Employee's election and the P&M and Employee agreement. Paragraph 11) leaves no room for the Employee's election and should be modified to include a due process notice period or other method to alert an Employee who appears unable to schedule a graduated vacation. It is conceivable that the problems that may arise under this paragraph will coalesce near the end of the calendar year. And, yes, it is conceivable that an Employee, no matter how diligent he/she is, may be unable to schedule a graduated vacation day but the paragraph makes no reference to the election right reserved for the Employee.
I have held several provisions of the proposed plan in violation of the Agreement. P&M's McKinley Mine's significant change in the seniority and 15% work force rule created by using crew size as the level for determination is the principal problem and may be an area for negotiation for the next Agreement.
The grievances are sustained in part and denied in part. Any matter dealing with seniority or related to the manpower rule hinged on crew size rather than mine wide seniority or work force is in violation of the Agreement. Block and consecutive day scheduling do not violate the agreement. There was no lawfully binding past practice concerning calling in for graduated vacation days off. P&M's declared right unilaterally to assign staggered regular vacation days and unilaterally to decided to give pay in lieu of graduated vacation days violates the Agreement.
The policy as adopted must be modified to meet the findings of this decision. The Arbitrator will retain jurisdiction for 45 days if jointly requested by the parties.
DATED this 7th day of January 1992
David K. Robinson, Arbitrator
CERTIFICATE OF MAILING
I certify that I mailed a copy of the decision and copies of Appendix A and Appendix B to the following persons at the addresses shown by first class mail, postage paid, on January 8, 1992.
Jerry Ann Kurth, an Employee of
1. Wally E. Bowman, Supervisor HR and LR, P&M Coal Mining Co., PO Box 338, Gallup, NM 87305;
2. Roy P. Fernandez, Sub-District Representative, UMWA District 15, 735 N 2nd ST, Raton, NM 87740;
3. Donnie Samms, President, UMWA District 15, 6525 W 44th ST, Wheatridge, CO 80033.
 Referring to the 15% of the work force rule and that the days shall not interfere with efficient operations as determined by management.
 Seniority is defined in Article XVII as "Seniority at the mine shall be recognized . . . on the following basis: length of service and the ability to step into and perform the work of the job at the time the job is awarded."
 See footnote 1 above.
 Referring to prescheduling changes.
 The inference from the language is that the mine wide work force, not a crew size, is the level for determination of the 15 per cent.
 Seniority is defined in the WCWA 1989 (and in the National Agreement's for many different contracts) in terms of "seniority at the mine." The level of determination is mine level, not crew level, in the language of the Agreement.
 See Appendix B. There, each case submitted bears much of the language and reasoning of the arbitrators and deals with variations on vacation scheduling and, to some extent, with past practice.
 See, e.g., District 17, UMWA, Local 340 and Valley Camp Coal Company, No. 81-17-82-169 (Samuel Spencer Stone, Arb. 3/23/82), Appendix A., Co. 3, citing and discussing the Review Board Decision.
 Consolidation Coal Company and UMWA, District 12, Local 9721, No. 81-12-84-1334 (Marvin J. Feldman, Arb. 7/10/84).
 UMWA, Local 1961, District 19 and Maple Meadow Mining Company (Cannelton Industries, Inc.), No. 84-29-86-182 (Paul L. Selby, Jr., Arb, 4/20/97); f/n 8; and other cases cited by arbitrator Selby in Maple Meadow.
 Joint Exhibit 4.
 "Seniority at the mine . . ..”
 Elkouri and Elkouri, HOW ARBITRATION WORKS 610-613 (4th ed. 1985)
 Joint Exhibit 4, Staggered Vacation 2) and 5) and Graduated Vacation at 4).
 Article XIV (g)
 Article XIII(c) ¶ 2.
 However, applying the 15% rule to Graduated vacation day scheduling has also been held not in violation of the Agreement as a permissible exercise of management discretion and not being arbitrary, discriminatory, or capricious. The Consolidation Coal Company, Shoemaker Mine and UMWA, District 4, Local 1743, No. 84-6-85-130 (Robert J. Vana, Arb, 3/17/85).
 There were 3-five man crews and 6-six man crews identified in Union Exhibit 1.
 Article XV (g); Article XIII (e) 1, Article XIII (a).
 For staggered regular vacation an floating vacation days, the scheduling is "at the times desired by the Employee so long as it will not interfere . . . as determined by the Employer." For graduated days, the joint conduct is "Time for taking shall be determined between the Employer and the Employee."
 Local 9819, District 12, UMWA and Peabody Coal Company, No. 10 Mine, No. 12-80-159 at 12-13 (Raymond R. Roberts, Arb.); UMWA, Local 1961, District 29 and Maple Meadow Mining Company (Cannel ton Industries. Inc.), No. 84-29-86-181 (Paul L. Selby, Jr., Arb. 4/20/87) (excellent discussion of scheduling).
 For an excellent discussion, see Union Case 10, Appendix B; UMWA, District 19, and Arch of Kentucky, Inc., Corbin Preparation Plant. CP-15, 16, 18-89 (Thomas M. Phelan, Arb., 6/30/90).
 Joint Exhibit 4.
 Article XIV (a).
 See Maple Meadows Mining Company, supra f/n 21.