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Title: The Pittsburgh & Midway Coal Mining Co. and UMWA, District 15 Local Union 1332 
Date: December 21, 1993
Arbitrator: David Robinson
Citation: 1993 NAC 103

             BITUMINOUS COAL INDUSTRY ARBITRATION

UNITED MINE WORKERS OF AMERICA,           )

DISTRICT 15, LOCAL UNION 1332,                      )         Case No. 9300-BPH

            and                                                                  )           Grievant:  Lewis Peshlakai

PITTSBURGH & MIDWAY COAL MINING             )       ISSUE:  IMMEDIATE

COMPANY, (McKinley Mine).                                  ) DISCHARGE, VEHICULAR

                                                                                    ) NEGLIGENCE 

                                                                                    )GRIEVANCE SUSTAINED ____________________________________)

Place of Hearing:  Holiday Inn, Gallup, New Mexico

Date of Hearing:  December 6, 1993

Arbitrator:       David K. Robinson, J.D.
                       930 South 3rd Street, Suite 200,
                       Las Vegas, Nevada 89101-6843,
                       (702) 385-5282

For Local:       Roy P Fenandez,
                       UMWA, District 15 Sub District, PO BX 220,
                       Raton, NM 87740

For P&M:       Edith Phillips,
                       P&M Coal Mining Co., McKinley Mine, PO BX M,
                       Gallup, NM 87301

Witnesses

 Company

Horace Clayton, General Stripping Supervisor,  Michael Provenza, Manager of Production.

Local Union

Lewis Peshlakai

Exhibits Received Into Evidence

            See Appendix A

ISSUE (STIPULATED)

DID PITTSURG & MIDWAY COAL MINING COMPANY ("P&M" or "Company") HAVE JUST CAUSE TO SUSPEND THE GRIEVANT WITH INTENT TO DISCHARGE?  IF NOT, WHAT IS THE PROPERTY REMEDY

CONTRACT PROVISIONS INVOKED BY PARTIES UNDER THE  WESTERN COAL WAGE AGREEMENT OF 1990 ("WCWA 1990") BETWEEN THE PITTSBURG & MIDWAY COAL MINING CO., AND THE INTERNATIONAL UNION OF UNITED MINE WORKERS OF AMERICA

Article II - 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 P&M.

Article XIX - Special Rules

Section (b) - Manning of Certain Mining Equipment

Paragraph (2) - Duties of Oiler 

The Oiler shall service the  . . . dragline  to which he is assigned.  Oilers servicing machines under 12 yards in size shall not be required to be within the swing of the boom.  On other machines, the Oiler will stay within the swing of the boom of the machine to which he is assigned except when performing duties customarily associated with his job at the machine.  The regular classified oiler shall, as part of his duties, learn to perform the duties of the machine operator through an on-the-job break-in under the machine operator's guidance.  After such break-in period, the oiler shall operate the dragline or shovel to periodically relieve the operator as directed by P&M. . .    .

Paragraph (3) - Duties of Groundman

The groundman's duties shall include the following:   knocking down the roll; steering the machine; leveling the machine; moving cable for the machine; and performing such other duties as are customarily associated with his job at the machine.

Article XXII-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 P&M to establish grounds for discharge in all proceedings under this Agreement.

I.  INTRODUCTION

            At the conclusion of the hearing on December 6, the arbitrator recessed for a period of one and a half hours to consider and make his decision.  The decision was announced at about 1:30 P.M. and reasons for the decision sustaining the grievance were announced.   (Article XXII (d) (3).   This legal instrument memorializes the decision and the rationale.

II.  FACT SUMMARY

            General  Stripping Supervisor, Horace Clayton, testified for P&M.      Mr. Clayton had conducted an investigation of the incident and testified about the  dragline machine ("dragline"), crew duties, and operation of the dragline relating to walking,  communications and the need for a level surface for walking the machine.   Michael Provenza, Production Manager, participated in a follow up inspection. 

             At about 3:15 A.M. on  Tuesday, October 12, 1993, the dragline had been walked to where the 3 man crew took a lunch break.   The dragline  was parked near the edge of the road.    At the time the dragline was stopped for the lunch break, the Grievant had been directing the steering of  the machine.     At about 4 A. M. work was renewed.   The walking operation began again.   After about 9 steps, there was a popping sound.     A step is about 17 feet.   The sound signaled that the right walking shoe had broken.  The break caused a shutdown for the machine of 60 hours,  repair costs of $24,000 and a  set back in coal production.

            The resulting investigations included interviews with each of the 3 man crew.  All 3 crew members were disciplined  under P&M's progressive discipline steps after the investigations were concluded.  The Grievant had several  years experience in dragline crew work.

            A dragline is supposed to be walked as much as possible the center of a roadway and always on level ground.  Here the dragline had been walked on the road's edge.  At the time when the break at the shoe occurred, the machine was not on sufficiently level ground.   There was about a 24"  incline  from the level surface.  The right shoe broke when it was not wholly in contact with  a level surface.

            Floodlight beams of 100 to 150 feet lit the roadway in the dark early morning.  The Grievant was the designated Oiler at the time of the damage.  When standing on the shoe, the oiler should have been able to see the floodlit area including the 60 feet or so of the machines structure.   At the time of the break, the Groundman was not in the vicinity but was  several hundred yards North of the machine and was involved in moving cable.  When a groundman is not there, it is the Oiler's duty to steer the machine.  Groundmen had last worked on the road about 12 hours.

            Communications between the person steering the machine and the Dragline Operator is by hand signals or telephone.  Telephones are installed at the  back of the dragline and in the operator's cab.  Radio communication is not used at McKinley Mine for  dragline crew communication.

            The same 3 man crew had worked a shift on Monday [October 11]  in the same general area.  The crew was working with Dragline 4 at the time of the damage.  The Grievant is usually assigned to Dragline 3

            The Oiler's Duty Sheet (Company Exhibit 1) does not specifically include a duty of the oiler to steer the dragline.  Neither does the Groundman's Duty Sheet (Company Exhibit 2).  At both investigations, the Grievant acknowledged that his duties included steering.  An oiler can carry out his regular duties and steer at  the same time.

            The investigation revealed that the Oiler (Grievant) and Groundman did not communicate with each other during lunch.   The Groundman did not tell the Grievant he was going to move cable at  the significant distance where he actually  was working at the time the dragline's shoe broke.  The Oiler hadn't  communicated with the Groundman about what his location would be  after lunch either.  There was no effective communication.

            The decision to terminate the Grievant was based on his being involved in 3 damage incidents within a one year period under P&M Policy (Joint Exhibit 2).  Company witness Provenza described the previous incidents and corroborated the investigations.  The  problem on the October 12 shift was lack of communication among the 3 man crew.   Neither the groundman nor the Grievant were usually on the same crew.   All of the crew knew their duties and knew they should have maintained effective  communications.

            The Grievant testified.  Mr. Peshlakai confirmed that he knew the duties.  Although  Mr. Peshlakai  was acting as Oiler that night, he is usually a Groundman.     The regular oiler on the dragline being served on October 12 was going on vacation.

            The Groundman had worked with the other 2 crewmen before the lunch break when the crew waked the machin to its stopping place.   After lunch, the Grievant began doing  the oiler duties of greasing and oiling shoes.  By then, Mr. Peshlakai did not know where the Groundman was.

            The Grievant said he had helped steer the dragline to where it was stopped for lunch.   When it was stopped, for lunch, the Grievant did not know whether it was in the proper position for starting out again because  the Groundman had been in charge.   He admitted that when the Groundman was not there, he was to have assumed the Groundman's duties of steering.  But, the Grievant said, he hadn't known the Groundman was not in the near vicinity of the  dragline after lunch and didn't know the Groundman wasn't there until he heard the popping sound signaling the break in the shoe.

ANALYSIS AND DISCUSSION.

            The burden of proof is on the Company in a just cause termination case.  Article XXII(a).   The burden of proof has been variously defined in coal and other industry arbitrations.  The most stringent burden is analogous to that in a criminal case, "beyond a reasonable doubt."    The most stringent burden is assigned by Arbitrators who adopt the view that discharge in analogous to capital punishment.  I adopt a less stringent view.  The Company must prove it's case by a clear and convincing evidence, a test less rigorous than the criminal test but greater than the test in civil cases where the burden is  " a preponderance of the evidence. "   I am mindful that a discharge can end the work life of an employee in the coal mining industry and do not treat a discharge matter lightly.

            The gravity of discharge in this case must be analyzed in view of the reserved rights of the Company to manage the mines and direct the working force.  Obviously P&M's rights are contractually reserved in Article II(d).  But, the Company cannot arbitrarily, capriciously, or unreasonably exercise it's rights.  Transport, Inc. v. Cannelton Division and UMWA, District 17, Local 8843, Arb. Rev. Bd. Dec. No. 78-103(3/18/80).   P&M did not arbitrarily or capriciously exercise it's rights in this case.   However, the language of the P&M policy enunciated in Joint Exhibit 2, scuttles the Company's  alleged right to terminate the Grievant for his third offense.

            The Grievant was discharged under a progressive discipline policy.   The policy deals with damage to P&M equipment only and clearly states that the third infraction mandates a written letter of suspension with intent to discharge. Upon close questioning, the arbitrator verified that the one year period to clear infractions described in the policy meant a one year look back period (October 12, 1993, the date of the incident causing this grievance ended the 12 month period).    The Grievant's second violation of the policy was on December 30, 1992.   The December 30, 1992 violation was for the Grievant's error in operating a dozer.    There, Mr. Peshlakai  hit his own truck with the ripper of a dozer while he was backing the dozer.  Mr. Peshlakai was  working as a Groundman on a dragline crew at the date of the December 30, 1992 incident.  There was no damage to P&M equipment when the ripper hit the truck.      The third violation within a one year period was the offense on October 12, 1993, the subject of this hearing.

            Indeed, the Grievant must be more careful.  He and other crew members must communicate as to their whereabouts when the dragline is being walked from one location to another.  Here, each crewman was disciplined under the same progressive discipline policy involving damage to P&M equipment.  But, I cannot affirm a discharge for a third offense for damaging or abusing P&M equipment when the damage arising in the 2nd  of the 3 necessary progressive discipline steps did not involve damage to P& M equipment.

            I sustain the grievance and deny the discharge.

            I now consider the appropriate remedy.   The carelessness by all the crew contributed to the damage sustained by the dragline and a set back to coal production.  Mr. Peshlakai must be reminded of his duties to be vigilant and careful.  Suspension without pay for a longer than usual suspension is appropriate and should get Mr. Peshlakai's and fellow crew member's attention.

ORDER

            It is ordered:

            1.         Mr. Peshlakai is suspended without pay for 30 working days retroactive to and beginning on November 2, 1993, the date when suspension with intent to discharge occurred;

            2.         Mr. Peshlakai shall suffer no loss of benefits other than loss of pay;

            3.         The incident of October 12, 1993 shall be deemed the 2nd offense

/////

/////

instead of the 3rd offense under the P&M policy expressed in Joint Exhibit 2.

            DATED this 21st day of December 1993

 

                                                                                    ______________________________

                                                                                    David K. Robinson

CERTIFICATE OF SERVICE BY MAIL

 

            I certify that I caused the following papers to be mailed by first class mail, postage paid, to the persons and at the addresses shown below on the 21st day of December 1993:

            Papers:   Decision, Appendix A, Statement for Services

           

                                                                                    ______________________________

                                                                                    Linda Gilman, an employee of
                                                                                    David K. Robinson, J.D.

1.         Edith Phillips and Wally Bowman, Human Resources and Labor Relations Dept., P&M Coal Mining Co. McKinley Mine, PO BX 338, Gallup, NM 87305-0338;

2.         Roy P. Fernandez, UMWA District 15, PO BX 220, Raton, NM 87740;

3.         Steve "Sarge" Feagins, UMWA District 15, 6525 West 44th Avenue, Wheatridge, CO 8033.

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