28 day free trial




LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 


Title: Big Sky Coal Company and United Mine Workers of America District 15, Local Union 1975
Date: March 30, 1996
Arbitrator: David Robinson
Citation: 1996 NAC 109





BIG SKY COAL COMPANY,                             )

BIG SKY MINE,                                                   )     ARBITRATOR, DAVID K.

                   AND                                                   )      ROBINSON

                                                                              )     HEARING:  MARCH 21, 1996


DISTRICT 15, LOCAL UNION 1975.                )      CLASS ACTION

                                                                              )     (ROY E.  BROWN, GRIEVANT)

                                                                              )     ISSUES:

                                                                               )   SATURDAY WORK,

                                                                              ) PAST PRACTICE AND CUSTOM _________________________________ 


Company:      Rod Hatten, Eller & Associates, Inc., 2535 Washington Road, Suite 111,                                Pittsburgh, PA 15241

Union: William (Bill) E. Johnson, Subdistrict #1 Representative, UMWA District                                 15, Route 3, 910 Sunrise Drive, Hazen, ND 58545



                        Curtis M. Belden, General Manager, Big Sky Coal Company

            Local Union:

                        Doug Goyette, President of Local 1575; Frank Vincent

Grievance No. 12495 dated December 4, 1995 (Joint Exhibit “1”)

Company is in violation of Western Surface Agreement (“WSA”) of 1995 (Article XXIII, Section B), prior practice and custom, by producing coal on November 25, 1995 [a Saturday] and not giving all employees an opportunity to work.  The Company presented language at last contract negotiations that would give them the right to push in.  The attempt to have this language put into the contract was unsuccessful.

Relevant Provisions from Western Surface Agreement of 1992 (“WSA” or Agreement”)


            . . .

            . . .

WITNESSETH:  It is agreed that this contract . . . except in those exempted classifications of employment as hereinafter provided in this agreement.  This provision does not change the rules or practices of the industry pertaining to management.  The Mine Workers intend no intrusion upon the rights of management as heretofore practiced and understood . . .  .  (Emphasis added).


Section (a) Work Jurisdiction

            The production of coal, including removal of overburden and coal waste, preparation, processing and cleaning of coal and transportation of coal in and around the mine and to a screening, crushing, washing or other preparation facility . . . shall be performed by classified employees.     .  .  .  

. . . 

Section (d) Management of the Mines

            The management of the mine, the direction of the working force and the right to hire and discharge are vested exclusively in the Employer.  (Emphasis added).


Section (c) Mines Which Operate Six Days or Less in Each Week

            At mines which load and process coal six (6) days or less during any week, the following rules shall apply:

            . . .

(2)       All employees, including those listed in paragraph (3) of this section, shall be given a fair and equal opportunity to work the same number of days per week as the number of days on which the mine loads from the pit and processes coal, and . . .  .   (Emphasis added).

. . .

(4)       Except in cases of emergency, all Employees required to perform idle day work on Saturday will be notified by the preceding Thursday.  The Employer shall post . . . before the end of the third shift on the Thursday prior to the Saturday . . .  . (Emphasis added).

. . .

(6)       Idle day work must be equally shared in accordance with past practice and custom.   . . .   .

. . .

(8)       No coal will be produced or processed on Sunday or on the holidays . . . , but the Employer shall be permitted to load previously mined and processed coal for shipment on any day. . .  . (Emphasis added).


Section (b) Prior Practice and Custom

            This Agreement supersedes all existing and previous contracts except as incorporated and carried forward herein by reference; and all local agreements, rules, regulations, and customs heretofore established in conflict with this Agreement are hereby abolished.  Except when abolished by mutual agreement of the parties, all prior practice and custom not in conflict with this Agreement shall be continued, . . .  [W]whenever a conflict arises between this Agreement and any District or Local agreement, this Agreement shall prevail.  (Emphasis added).




Big Sky Coal Company, Peabody Western Coal Company (“Company”)

            The Company was not in violation because (1) coal crushing on the idle day did not constitute coal “production,” (2) the minimal work done on the idle day was necessary under the economic circumstances at Big Sky Mine and the work was within the rights reserved to the Company under the Agreement.

            Big Sky had the choice of either crushing coal on Saturday or passing up a train or trains that couldn’t be loaded because not enough crushed coal may be ready. 

            Scheduling all Classified Employees on Saturday when only crushing is needed as Big Sky did in the past is not a binding past practice and custom.  Big Sky believes that its scheduling done on November 25, 1995 when not all Classified Employees were called out was a unilateral exercise of a basic reserved management right because the change was to meet the changing requirements of the Company and to improve its competitiveness and ability to earn a profit.  Operating the crushers alone in order to facilitate loading scheduled unit trains does not constitute “production” within the meaning and intent of the Agreement.  The language of Article IV, Section (c) (2) “[o]n which the mine loads from the pit and processes coal . . .” does not require them to work the entire crew.[1]  No loading from the pit was done on Saturday.  Operating the crusher only is the equivalent of operating a coal preparation plant and does not include both loading from the pit and processing.  Only 6 or 7 Classified Employees per shift are needed to crush coal on a non-production Saturday instead of a full complement of 46, 31, or 18 on each of the 3 shifts.  The average labor cost per Classified Employee for a Saturday idle day work is $223.

            The Company was not in violation when it did not call out the entire crew of Classified Employees on the idle day, November 25, 1995.  For the Company to stay competitive and to continue to provide jobs for the Classified Employees, the grievance should be denied.  The Company had and exercised its inherent right to schedule the workforce on Saturday in the most economical fashion the Company deemed proper.

Local Union 1576, UMWA District 15

            The Company violated long established past practice and custom.  The Company attempted to change the language of the Agreement during bargaining for the 1992 contract in order to allow the Company to process without working all classified Employees on an idle day.[2]  The attempt was not successful.  The Company is now trying to accomplish indirectly what it did not accomplish directly in negotiations. 

            The grievance should be sustained.  The appropriate remedy is to make whole all the Classified Employees who were not given the opportunity to work.

Arbitration Cases Submitted

            In support of their positions, the parties collectively submitted 36 arbitration cases to the arbitrator for review.  After reviewing the cases, I have elected to refer only to some of the more representative cases on the issues in this matter during the course of this discussion.


            Based on the oral testimony of witnesses at the hearing and documentary evidence received, I now make the following factual summary.

Local Union Witness Frank Vincent testified.

            Mr. Vincent is a former officer of the Local.  He participated as a negotiator for the local union on the WSA 1992.  Mr. Vincent has been a Classified Employee for 22 years.  During his tenure from the time he began as a laborer and warehouse man, Saturday work involved all Classified Employees.  He remembers early in his employment career being informed that Saturday was a “run day.”  Through Mr. Vincent Union Exhibit 40 was received into evidence.  Company personnel during the negotiations attempted to have the Local accept changes to the Agreement in Article IV (c)(2) and (c)(8).  (See footnote 2 for Company suggested changes).

            The local rejected the Company’s proposed changes.  Mr. Vincent testified that the intent of the contract would be changed if acceptance had been made and that there was a long standing and binding past practice and custom to work all Classified Employees on a Saturday when work was to be done. 

            On cross examination about his understanding of the “loading from the pit,” language of the Agreement, Mr. Vincent acknowledged that an end loader typically moves the coal only once into a coal loader and that coal is removed only once out of the pit.

Doug Goyette testified for the Local Union.

            Mr. Goyette is a 22-year employee and is currently the President of the Local.  In his work experience at the Big Sky Mine, if coal is being processed, all Classified Employees work on Saturday in his experience.  Union Exhibit 41s and 42 were received.  Union Exhibit 41 is entitled “BIG SKY COAL COMPANY, CORE CAT TEAM.” and expresses goals and objectives to the operation of the mine.  Included among the goals and objectives are work practice changes described as “Push in on Saturdays, Holidays, Vacation periods, and idle days.”  Members of management presented Exhibit 41 to Mr. Goyette and talked to him.  Union Exhibit 42 (dated October 20, 1995) consisting of 3 typed paragraphs was presented to the local and reads as follows:

Big Sky Coal Company and UMWA Local 1575 agree that if it is necessary to process coal on October 21 [Saturday], 28 [Saturday] or November 4, 1995 [Saturday], these days will be considered production days.  Those employees who do not wish to work on one or more of these days if scheduled as a production day will be changed on the turn sheet but will not be required to take a contractual day.

During the period October 20, 1995 to November 8, 1995, Big Sky Coal Company and the International UMWA will attempt to reach an understanding regarding the scheduling of employees when Big Sky Coal Company must process coal.  If an agreement is not reached by November 8, 1995, Big Sky Coal Company will process coal as necessary to meet train-loading requirements.

If after November 8, 1995, a grievance is filed regarding the processing of coal and scheduling of employees, Big Sky and the UMWA Local 1575 agree to by-pass step two and immediately proceed to step 3.

            Members of Peabody and Big Sky management had approached Mr. Goyette on earlier occasions about permitting changes in work schedules.  For example, Mr. Goyette was informed that the Company wanted to change work practices including the Saturday push in and that the Company wanted 10 hour shifts.  In 1993, the Company’s Dennis Stevenson talked to him about pushing in on vacation days.  At that time, Mr. Stevenson asked me to approach the Local’s Committee.  The Local declined and said it would file a grievance if the company pushed in on vacations.  During a meeting with the Company’s CORE CAT TEAM, Peabody’s Gary Melvin and Howard Carson again brought up changes the Company wanted in the Agreement.  Then, at a committee meeting, Howard Carson told Mr. Goyette and the others of the Local’s contract extension team there that the Company would test the “pushing in”.  Mr. Carson said that the Company would not “push in” under the changes the Company wanted to make until the Local could contact the International and get the International and Mr. Howard Carson, President of Peabody Western together.  That meeting did not occur and no agreement was reached.  This arbitration followed Step 3.

            “Pushing In” according to Mr. Goyette is to push coal in from the stockpile.  There is only one place to stockpile coal at Big Sky and that is in the Silo.  Pushing in constitutes a production day according to Mr. Goyette.  Crushing or processing coal constitutes production of coal in Mr. Gazette’s opinion because crushing is part of the production process.  It has always been a practice at the Big Sky Mine during Mr. Goyette’s experience that when pushing in was done, all Classified Employees could work.

            Gary Melvin, a Peabody Western Vice President, prepared the document that was received as Union Exhibit 42 according to Mr. Goyette.  Mr. Goyette has never seen a signed copy.

            Mr. Goyette was told there was a 90-day limit to get the BIG SKY COAL COMPANY CORE CAT TEAM program into operation and that Big Sky was the first of the Peabody Western’s mine involved in the program.  During the time, Mr. Goyette was told, “you don’t have to agree, you just have to reach consensus.”  No agreement was ever reached. 

            Mr. Goyette acknowledged that Mine Communication Committee Meetings occur.  However, he testified, no in depth statements concerning Big Sky’s problems with coal trains or with BNSF[3] have been made.  He remembers that Company spokesmen told them they were worried about not getting coal to the customers in a timely fashion.  The Committee was told that the Company had no agreement with BNSF.  No statements were made that trains were turned away because workers couldn’t be found.

Big Sky Coal Company’s General Manager Curtis M. Belden testified.  

            Mr. Belden has been a management official since 1984 and is the General Manager of the Big Sky Mine.

            There are presently 95 Classified Employees.  To accomplish pushing in, crushing, and depositing into the storage silo, 7 Classified Employees are needed on each shift.  Normally coal is produced on 2 shifts.

            Until 1991, Minnesota Power’s Clay Boswell Power Station was the only significant Big Sky customer.  The contract with Minnesota was a requirements contract.  The power station’s entire coal requirement was satisfied by the production shipped to it by Big Sky under the contract.  The price in 1991 was between $11 and $12 per ton.  Pricing was on a cost plus basis.  Controlling costs was important but not pressing as it is today.

            Then (up to the end of 1991), if Big Sky could not load a unit train, Big Sky called Burlington Northern and had the train diverted to another mine or parked.  Burlington Northern parked trains on sidings at Glendive or Forsyth, Montana.  There was no demurrage charge then.  A unit train set consists of 110 to 113 cars all of which are the same size.  An average unit train carries an average of 12,400 tons.  Burlington Northern’s successor, BNSF, now intends to impose strict requirements on Big Sky for loading unit trains scheduled in by BNSF on schedules its customers set.  Contracts with customers and Big Sky now impose stringent loading schedules too.

            Before the end of 1991, 2 pits were sometimes open and as many as 3 draglines were in operation.  There were also more shovels in operation.  In 1991 the western coal requirements contracts were under severe attack.  Like many other utilities with requirements contracts, Minnesota Power elected to buy out the remaining years of the Big Sky contact.  The buy out was in the 30 million dollar range.

            After the buy out, Big Sky sought spot business and other customers.  Much of the mining equipment was shut down.  Stripping was left to one dragline and loading left to one loader.  In the interim, there were many idle days affecting the work force and the profitability of the mine. 

            Big Sky now has five major customers.  Minnesota Power is a customer and takes delivery at two power stations.  Wisconsin Power and Light is a customer at one station.  Wisconsin Electric Power takes shipment at one station.  Northern States Power and Western Fuel Association each take to their own separate sites. 

            It is anticipated that 4.8 million tons will be shipped in 1996 in 384 unit trains.  More coal is being shipped now than at the end of 1991.  During the same period, the price of coal has dropped to about half the price per ton when the requirements contact was in effect.  Planning capital replacements and keeping costs down to make a profit is difficult.  All the customers have more suppliers than just Big Sky.  Price competition imposes significant pressure on restraining company operating expenses.

            At coal customer’s power generating plants, the customers must cope with coals of different quality coming from different supplier’s mines.  The user must blend coal for maximum efficiency at the user’s power plant.  Trains are scheduled by the utilities to accommodate their own needs not Big Sky’s.  Big Sky has no contractual arrangement with BNSF.  The utilities have the train contracts.

            After 1991, the Clean Air Act amendments have had a significant effect on western coal.  Now BNSF wants quick turnaround because its customers are demanding the coal.  Some cars are owned by BNSF but two of Big Sky’s customers own their own coal cars.  The dispatch office of BNSF calls Big Sky usually on a 3-day notice as to when a unit train will be available for Big Sky to load.  Some customer’s receiving facilities cannot handle certain cars because of their individual unloading facility problems, thus requiring different Big Sky loading procedures to be altered for some customers. 

            Big Sky can never be sure if BNSF scheduled trains will actually appear at Big Sky.  The BNSF dispatchers work from computers in Houston, Texas.  Sometimes the railroad dispatchers bunch trains, causing unexpected scheduling problems at Big Sky.  Scheduling loading at Big Sky is a significant problem because Big Sky has no input into when trains arrive.  Only BNSF controls when trains arrive. 

            It takes about 3.5 hours to load a unit train out of the silo.  If the silo is empty, it takes 8 hours to” push in” enough crushed and processed coal to load one unit train.   

            On weekends, scheduling is acute because we need to know if several trains are scheduled on weekends.  We need to know if trains can be diverted.  Further, the BNSF now has indicated that we may have to pay demurrage charges of $400 to $600 per hour if a train is parked to accommodate our needs.  BNSF does not want to park trains to accommodate Big Sky because of its own commitment to its utility customers and candidly told Big Sky it can no longer tolerate waiting to load a train or the inability of Big Sky to load on idle days.  (Letter of 3/15/96 from BNSF to Big Sky Mine, Company Exhibit 29).

            Company Exhibit 27, an excerpt of a contract with a Big Sky customer, includes a requirement that Big Sky’s loading facility be capable of loading a unit train 7 days per week and 24 hours per day within 4 hours.  The contract reserves to the customer the right to recover from Big Sky any increased charges by the carrier if Big Sky does not timely load.  If the customer does not get the coal it may have scheduled for its blending requirements, the customer could incur additional unwanted costs to find other coal to blend.  We need to ship, Mr. Belden said, in order not to lose revenue and to keep our customers happy.

            Stripping crews are usually scheduled for 6 days.  Loading coal from the pit and processing it on the same day are typically scheduled for 5 days per week.  The preference is to dump raw coal directly into the hopper.  All product is crushed.  The silo holds 29,500 tons, slightly more than two unit trains full of coal.  We cannot store enough coal for three unit trains.

            The event of Saturday, November 25, 1995 was precipitated because Thursday was Thanksgiving.  We didn’t schedule everybody to work.  We had loaded two trains out of the silo on Thanksgiving and on the Friday following.  One train was scheduled for Saturday and one for Sunday.  We had to replenish the silo storage so we could load trains on Saturday and Sunday. 

            The agreement bars us from producing or loading coal out of the pit on a Holiday.  The Agreement permits us to load and ship previously mined and processed coal on Holidays.  The same provisions apply to Sunday. 

            If the silo is full, only 2 Classified Employees are needed to load a train.  To process (crush), 7 Classified Employees are needed.  We didn’t schedule everybody out because we called on only the number we needed to accomplish the task.  On Saturday, no coal was loaded from the pit.  The train was loaded on Saturday using two shifts.  Actually only 10 people participated.  It was a holiday weekend and many employees did not want to work.  A few “doubled” to complete the necessary crew.  Each additional Classified Employee working on a Saturday costs an average of $223.

            Yes, it is correct, as stated by the local union’s witnesses, that in the past it has been the practice at Big Sky to allow work for all the workers who wanted to work on a Saturday when any production or processing work was done.  In the past, what was done on November 25, 1995 would have triggered a day when all Classified Employees who wanted to work could work.  Mr. Belden denied that the practice amounted to a binding past practice and custom. 

            Mr. Belden corroborated the statements by Doug Goyette that there were frequent discussions by Company management personnel with the Local Union concerning work on Saturdays and vacation days.  Mr. Belden disagrees with the Local that Saturday work when scheduled requires that all workers be allowed to work on Saturday.  He said that the Agreement allows the Company to schedule less than a full crew on a Saturday. 

            Although there have been many discussions, the applicable language about Saturday work in the Agreement remains unchanged.  A “production day” is when coal is loaded from the pit and processed.  On such a day, all employees are eligible to work.  If coal is not actually dug out of the pit, he says, it is not a production day but is an idle day.  Mr. Belden testified that under no circumstances can we mine and process coal on Holidays and Sundays.  However, we can either load or process on Saturdays but not both unless we have a production day and allow all the Classified Employees to come to work.

            The CORE CAT TEAM program was a profit improvement and quality improvement program intended to improve the Big Sky Mining Company’s competitive position against other coal producers in the Powder River Basin.


            Peabody Western Coal Company operates four surface mines, two in Arizona, one in Colorado, and the Big Sky Coal Mine located in eastern Montana near Colstrip.  The Big Sky Coal Mine is located at the Northern end of the Powder River Basin geographic area.  Each Peabody Western surface mine is an independent profit (or profit and loss) center.    

            Big Sky Mine employs 95 Classified Employees represented by the UMWA through Local 1575, District 15. 

            The mine is a conventional surface mine.  The primary overburden is removed by one Model 1260 walking dragline machine using a 36 cubic yard bucket.  Front end loaders with 20 or 22 cubic yard buckets then move the fragmented coal from the seam and load it into 150 ton bottom dump coal haulage trucks.  The haulage trucks move the fragmented coal approximately 4 miles from the pit to the preparation plant for crushing and sizing.

            The primary and secondary crushers at the processing plant reduce the coal to 2 inches.  The crushed and sized coal is then moved into a storage silo. The silo has a capacity of approximately 29,500 tons, the equivalent of slightly more than two fully loaded unit trains.  The silo-stored coal is then flood loaded into the unit train.  A typical unit train consists of 110 to 113 cars.  The railroad company then moves the coal to Big Sky customers’ located in Minnesota and Wisconsin.  It is anticipated that approximately three hundred eighty four (384) unit trains will be loaded in 1996 or about eight (8) unit trains per week.  A unit train typically holds 12,430 tons of coal.

            Overburden removal crews are generally scheduled to work 6 days per week, Monday through Saturday.  The balance of the workforce is generally scheduled to work 5 days per week, Monday through Friday.

            Until the end of 1991, Big Sky typically produced 3,000,000 to 3,500,000 tons of coal per year.  Then the coal was shipped by rail 775 miles to Minnesota Power’s Clay Boswell electric generating station.  There was a long term “requirements contract” between Big Sky Coal Mine and Minnesota Power.  The price was between $11 and $12 per ton.  Times have significantly changed.  Big Sky now operates without the requirements contract.  The price of coal Big Sky sells has plummeted to between $6 and $6.50 per ton.  There has been a consolidation of railways and the remaining rail service, BNSF, has notified Big Sky Mine that failure to load unit trains at the time they are scheduled to arrive may result in the loss of the unit train, the train being diverted, or the imposition of a demurrage charge to Big Sky Mine of $400 to $600 per hour if the train his held awaiting loading if Big Sky cannot be load the train when BNSF schedules it to arrive.

            Coal production is higher now that at the time of the signing of the WSA 1992 but the price per ton is significantly lower.  Given the economic terror of competitively forced lower prices and demands that may be imposed by a railroad no longer facing significant competitive pressure, Big Sky Coal Company believes it can no longer afford to schedule all Classified Employees to work on a non-production idle day when processing coal or overburden removal work is the only work that actually needs to be done, Particularly is this so, according to Big Sky, when the work is Saturday work requiring time and a half pay for Classified Employees. Normally only maintenance and overburden removal crews would actually be necessary on Saturday idle days. 

            The Company had and has the inherent reserved right to use less than all the Classified Employees.  There was no loading from the pit on Saturday, November 25, 1995.  Article IV (c)(2) does not apply.  Article II, Sections (a) and (d) control.  The Company cannot be held to have violated the Agreement.  The Company has always had the right not to call in the entire Classified Employee staff on the Saturday idle day.  Until scheduling the November 25, 1995 work that brought on this grievance, the Company has not asserted its right but cannot be penalized for doing so now.

            In “more plentiful times,” Big Sky usually elected to schedule the entire mine complement of Classified Employees even when only crushing operations were needed to fill the silo in order to load trains.  Now, for example, if BNSF schedules more than 2 unit rains for a weekend (4 P.M. Friday to 4 A.M. Monday), even if the silo is full at the end of a shift on Friday, more coal must be crushed on Saturday and put into the silo in order to be available to load more than 2 trains [the silo capacity is slightly more than 2 trains] which may be scheduled by the Railroad to arrive during the idle time.   Big Sky urges that it has the choice of either crushing coal on Saturday or passing up a train or trains that cannot be loaded because not enough crushed coal may be ready. 

                 BURDEN OF PROOF

            The testimony was clear that there was no loading from the pit on Saturday, November 25, 1995 at the Big Sky Mine.  There was coal processing since crushing and sizing occurred on that Saturday.  Both loading from the pit and crushing did not occur on Saturday.  Less than a full complement of the Classified Employees was called out.

            What must be decided to resolve this class action grievance is whether or not there was a binding past practice and custom; whether the practice and custom, at the Big Sky mine conflicted with the language of the Agreement and was therefore abolished under the terms of WSA 1992; and whether the Saturday, November 25,1995 work carried out with less than a full complement of Classified Employees was a valid and permissible exercise of reserved management rights and was not a violation of the WSA 1992.

            The Grievant, the Local Union in its class action, has the burden of persuasion by a preponderance of evidence.



            In the WSA 1992, the Article and Section dealing with Saturday work relating to loading and processing coal is Wages and Hours - Article IV (c).[4]  The prefatory language is, “At mines which load and process coal six (6) days during any week, the following rules shall apply:” and then adds in subsection (2) that “[a]ll Employees shall be given a fair and equal opportunity to work the same number of days per week as the number of days on which the mine loads from the pit and processes coal.”  (Emphasis added).  “Loads from the pit and processes coal” language clearly applies to surface mine operations as compared to “production” or “produce” which language can apply to any kind of coal mine.  In many former national agreements covering both surface and underground coal mines, the operative language was “production” or a variant of production instead of the more exact language of “loads from the pit and processes coal“ as now appears in the Western Surface Agreement of 1992.

            For example, in the National Bituminous Coal Wage Agreement of 1984 (“NBCWA 1984”), the Wages and Hours Article IV (d)(3) states, in relevant part, “All Employees at mines which produce coal six (6) days per week shall be given a fair and equal opportunity to work on each of such six (6) days.”  (Emphasis added).  The example is for illustration only to highlight the language differences that have evolved over time in the Labor and Management Agreements in the Bituminous Coal industry controlling work opportunities on Saturdays (sixth day of six day workweek) in the industry.  The “produce” language is based upon a memorandum of December 17, 1943[5] signed by UMWA President John L. Lewis and Secretary of the Interior Harold L. Ickes that said:

All employees at mines which produce coal six days per week shall be given a fair and equal opportunity to work on each of such six days.  Laying of individual mine workers during the week for denying them six days’ work is prohibited.  (Emphasis added).[6]

See, Westmoreland Coal Co, Wentz Prep Plant and UMWA, District 28, Local 1405, Arb No. 88-28-89-17 (John J. Morgan, Arb. 5/1/89) and Drummond Company, Kellerman Mine Preparation Plant and UMWA, Distinct 20 and Local 1876, Arb.  No 20-76-204 (H. H. Grooms, Jr. Arb. 3/8/77).  The Lewis-Ickes Agreement was memorialized in the 1945 national agreement and exists largely unchanged today except for the relatively recent change in language in the Wages and Hours Article about “production of coal” in older surface mine agreements to language now expressed in conjunctive form such as “loading and processing” or “loading from the pit and processing.”

            Company Exhibit 21 is an excerpt from the NBCWA of 1971.  There, article IV (c)(3) under Saturday, Sunday and Premium Work includes the language that all employees at mines which produce coal six days per week shall be given a fair and equal opportunity to work and prohibited laying off during the week to deny the six day work right.  Likewise, the NBCWA of 1974 included the same “produce” language.  Company Exhibit 22.  The Western Surface Coal Wage Agreement of 1975 (“WSCWA of 1975”) introduced the language “loads from the pit and processes coal” in place of “produce” or “produces.”  Company Exhibit 23.  At least one other surface mine in District 22 in adjoining Wyoming negotiated a specifically expressed right for the Company to produce, process, and load on some Saturdays without working the entire workforce.  No such negotiated agreement to include similar specific language has been reached at Big Sky.  Company Exhibit 24.

            What comprises the meaning of the words “produce” or “produce coal” within the meaning of the Labor and Management contracts in the industry and “process” and “processing” has spawned torrents of words and conflicting decisions construing the national agreements.  Ambiguity and controversy are provoked too because Article 1A (a) [Scope and Coverage - Work Jurisdiction] includes language about production and lists some elements in the stream of an entire production process, where the expression is:

The production of coal, including removal of overburden and coal waste, preparation, processing and cleaning of coal and transportation of coal in and around the mine and to a screening, crushing, washing or other preparation facility, or other mine-related operation (except by waterway or rail not owned by Employer), repair and maintenance work normally performed at the mine site or at a central shop of the Employer and maintenance of gob piles and mine roads, and work customarily related to all of the above shall be performed by classified Employees of the Employer covered by and in accordance with this Agreement. (Emphasis added).

            Analysis of what coal production means as the term affects Classified Employees available work inevitably involves consideration of both Work Jurisdiction Article 1A(a) and the Wages and Hours Article IV.[7] particularly when Saturday premium work is involved and the entire complement or workers is not needed for full scale production.

            In surface mine agreements such as that between the Employer and Employees here, the construction problems are lessened because the operative language relating to Saturday work in Article IV(c) is “load and process coal” and in (2) is “loads from the pit and processes coal” and does not include language about “production.”  The word “produce,” unlike in many other National Agreements, is conspicuously missing in the Article covering Wages and Hours at IV(c) and IV(c)(2) in the WSA 1992.

            Almost all cases submitted by the parties for my review arose when the language of Article IV dealt with “production” in describing what happened to trigger the contractual mandate that all employees be given a fair and equal opportunity to work on a Saturday premium pay day.

            Conflicting arbitral views of what is “production” sufficient to activate the contractual duty to allocate sixth day work opportunities for available work fairly and equally among all Classified Employees at a mine began with arbitrations under the early national agreements and continues today.  Two lines of authority have evolved, both lines carefully and rationally reasoned.  One line of cases breaks down “processing” and “production” personnel, for example and adopts a view that only the personnel needed for the particular kind of work to be done need be allocated the available work opportunity fairly and equally.  Likely, many arbitrators made the distinction in order not to cause undue expense and in recognition that calling out more workers than needed for a task was uneconomic.  The other line of cases take the stricter view that “production,” standing alone, must be interpreted to mean that all Classified Employees must work on the sixth day when any “production” occurs at a mining facility.  This view employs a more strict view of the word “production” as stated in the Article IV of the typical national agreement.

             The first view may be termed  “Only those necessary to perform the Job work” and the other “when the mine works all Classified Employees Work.”  Clearly, such bright lines result in more or less people working and higher or lower cost to the Company for work at a mine on a particular day when the full complement of workers was not deliberately scheduled to work in “production.”  These bright lines have caused varying decisions sometimes by the same arbitrators when confronted at different times by different sets of facts and when construing essentially the same contractual language turning on “production.” 

            I now consider the well-reasoned case cited by the Local Union to support its position in this controversy that all employees had to be given the opportunity to work because of the past custom and practice and the affect of Article IV.  Westmoreland Coal Co., Wentz Prep Plant and UMWA, District 28, Local 1405, (Arb.  No. 88-28-89-17 (John J. Morgan, Arb. 5/1/89).[8]  There, Arbitrator Morgan, an experienced and skilled arbitrator, sustained a grievance and held that the language of Article IV (d) (3) mandated that all employees at mines shall be given fair and equal work opportunity of each sixth production day.  The operative language of the national agreement then in effect was “All employees at mines which produce coal six (6) days per week shall be given a fair and equal opportunity to work on each of such six (6) days.”  Arbitrator Morgan acknowledged that the award would be costly in terms of economy and efficiency but that the language of the contract prevailed and mandated his finding.  He also noted that the only possible remedy is that the language be changed by negotiators for the following national contract.  Westmoreland at 6 and 10.  There, a parade of 36 prior arbitration decisions was presented to Arbitrator Morgan. 

            In Westmoreland, Arbitrator Morgan considered and applied other cases including Arbitration Review Board Decision 78-20 of December 1979.[9]   In Decision 78-20, at page 3 the issue presented to the Board for its decision dealt with whether on a day other than a Saturday, Sunday or Holiday, when an operation works with less than a full complement of regular work force, the Employer must be assigned the available work in accordance with the layoff provisions of Article XVII [Article governing seniority in the then applicable national agreement] section (b) [Seniority], or may treat the day as an idle day and assign the work in accordance with the idle day work assignment plan.  At the time, the “idle day” and “seniority” views competed as to what workers should be allocated the available work were both.  In Decision 78-20 at page 21, Chief Umpire Selby analyzed Article IV (Wages and Hours) and Section (d) (Saturday, Sunday, and Premium Work) and, among other things, said:

The two paragraphs [referring to paragraphs 3 and 4 of Article IV Section (d)] express an important policy that all employees (implicitly-regardless of seniority) are to be given a fair and equal opportunity to work whenever production work goes on at the facility, and even the specialized service employees are to be given fair and equal opportunity to work at their jobs on an equal number of days that the mine produces coal, even if there schedules are staggered differently from other production employees. (Emphasis supplied).

Consideration of processing as being equivalent to production was not a necessary analysis in Chief Umpire Selby’s decision in Review Board Decision 78-20.

            Without a complete citation, Arbitrator Morgan cited a decision by Thomas M. Phelan, another well know and regarded arbitrator, in Case No. 81-19-82-8 dealing with Article IV Section (d).  Arbitrator Phelan held that all employees are to be given fair and equal opportunity on production days.  Arbitrator Morgan quoted Arbitrator Phelan:

The question that has to be answered here is whether the preparation plant Employees and the surface crew whose jobs are related to the processing of coal, as opposed to the production of coal, are considered to be ‘at the mine’[10] for purposes of the general principle that on a production day, all Employees at the mine are supposed to be afforded the opportunity to work.

. . .

The preparation plant Employees [generally considered to be involved in “processing”] and the surface crew, however, are still a part of the mining operation of the Company and they are ‘at the mine’ along with the underground Employees whose jobs involve servicing the underground operations. They are all part of one mine and when that mine produces coal, all employees at the mine must be afforded the opportunity to work.  Denying the surface employees the opportunity to work on [date given] was consequently a violation of their contractual rights.

            In 1981, the Arbitration Review Board’s landmark Decision Number 78-61 reversed an award where the District Arbitrator had sustained a grievance demanding that the other day shift employees should have been called out because processing of the coal amounted to production thus triggering the right of all employees to work under Article IV, Section (d)(3).  Arbitrator Mulhall had found that processing coal was equivalent to producing coal.  Kentucky Carbon Corp. and Local 1416, District 30, UMWA, Arb.  No. 78-30-79-185 (W. Thomas Mulhall, Arb., 7/24/79), Arb. Rev. Bd. Rev. Case 78-239  (Arb. Rev. Bd. Dec. 78-61, (Richard I. Bloch, Ch. Ump., 2/3/81).  Arbitrator Mulhall’s decision conflicted with other arbitrators who had concluded that production was not synonymous with processing.   Precedent setting Board Decision 78-61 did not lay to rest the differences of opinion although a growing majority of arbitrators adopted the “processing is not production” view.    

            About 2 months after Arbitration Review Board Decision 78-61, Arbitrator Thomas M. Phelan in UMWA, District 31, Local 8140 and Sewell Coal Company Central Shop, Arb No. 78-31-81-162 (4/1/81) revisited the issue of production and whether “ processing” was the equivalent of “producing.”  In Sewell, Central Shop, a processing plant employee grieved for pay for not being given an opportunity to work.  Arbitrator Phelan declared at page 12 that processing of coal at a preparation plant is not the contractual equivalent of production of coal at a mine within the meaning of Article IV, Section (d) Paragraph (3).  Noting that in Arbitration Decision 78-61, supra, The Board equated coal production under Article IV, Section (d), Paragraph (3) with the activity that takes place in the mine itself as opposed to the preparation plant.    

            Former Chief Umpire, Paul L. Selby, Jr., author of Arbitration Review Board Decision 78-20 in December 1979 when acting as an arbitrator in 1981 again encountered the frequently recurring processing and production question.  NBCWA 1981 was then in effect.  UMWA, Local 7555, District 17 and Island Creek Coal Company, Elk Creek No. 10 Mine, Panel No. ICC-81-2-17 (Paul L. Selby, Jr., Arb., 10/22/81).  The issue was whether the mining company violated the agreement by processing coal on a Saturday second shift without calling all employees out to work as on a production day.  Arbitrator Selby had expressed in dictum in Board Decision 78-20 that the policy expressed in paragraphs (3) and (4) [of Article IV (d) dealing with Saturday, Sunday and Premium Work] was that all employees, even including specialized service employees, are to be given fair and equal opportunity to work at their jobs on an equal number of days that the mine produces coal.

            The Island Creek, Elk Creek No. 10 Mine decision is instructive.  The Company purchased all coal from independent contractors; all of who were signatories to the National Agreement then in effect, and then processed the already mined coal through its own plant.  On the second Saturday shift only, coal was scheduled to be processed.  The Union’s position at the grievance hearing was that when a company determines to produce or process coal on any day it can’t claim that day to be an idle day.  Further the Union argued that on a production day, if any coal is to be produced or processed, it must be on the day shift [schedules apparently followed at the particular processing plant before], and, for work assignment purposes, the company cannot use both an idle day roster and a production day roster on the same day and combine the two rosters for the purpose of work assignments on such day.  The Company argued, in relevant part, that the facility does not produce coal from any mines, it simply processes already mined coal.  When the facility works, it is not producing coal within the meaning and restrictions of Article IV (d)(3).  The ultimate issue faced by Arbitrator Selby was what constitutes production of coal within the meaning of Article IV for the purposes of distinguishing between the authorized use of idle day work assignment plans under Article IV (d)(7) and the requirement under Article IV (d)(3) requiring “fair and equal opportunity to work” on production days.

            In his decision denying the grievance, Arbitrator Selby noted that only processing and no actual extracting of coal took place at Island Creek’s Elk Mine No. 10.  Previously, In Local Union 9909, District 31, UMWA and Consolidation Coal Company, Loveridge Mine, Consol-District 21 Panel Ref. No. 80-26-LC (Paul L. Selby, Jr. Arb., 9/30/80), Arbitrator Selby followed the general theme of his Arbitration Review Board Decision 78-20 that all employees be given an equal opportunity to work the premium time on the sixth day once a decision has been made by the Employer to produce or process coal on that day.  At pages 11 and 12 of the Elk Creek Mine No. 10 decision, Arbitrator Selby reviewed his former view (that the thrust of Article IV, section (d)(3) sought to assure that if “production” - in the sense that a product is produced or prepared for shipment to customers - takes place on a premium day, then all employees in that particular work force involved are entitled to be assigned for such premium day).  By the time of the Island Creek Elk Mine No. 10 decision, the Arbitration Review Board’s precedent setting Decision 78-61 had placed controlling emphasis in regulating production days on the sense of “production” as meaning extracting coal from the ground and that “processing” alone is not the contractual equivalent of “producing.”  In dismissing the grievance in Consolidation Coal, Loveridge, Arbitrator Selby noted the precedent of Arbitration Review Board Decision 78-61[11] and the limited nature of the scope of operations of the preparation plants in the case before him, in Decision 78-61 and in the grievance decided by Arbitrator Phelan in Sewell Coal Central Shop, supra.

            Shifting decisional analysis from “production” in its broad meaning to considering the particular function or the juncture in a full production cycle at a coal mine makes more economic sense too.  The full cycle of coal production starts from the coal’s extraction and ends with the shipment of the coal product from the Mine’s property to its customer.  The newer language such as that in the WSA 1992 describing “loads from the pit and processes coal” instead of “produces” can put to rest much uncertainty about how to make operating decisions for Saturday premium day work and help avoid controversy at a mine and among the Classified Personnel and management.  At Big Sky on the Saturday workday under review, only previously mined coal was crushed and loaded for shipment.  Coal to be crushed on Saturday, November 25, 1995 had been extracted from the seam by a dragline and transported to the surface by hauling trucks on an earlier day when the full complement of the classified workforce participated.

            In the highly competitive bituminous coal industry as it exists in 1996, the cost of product looms large in whether or not a particular operation can price its product competitively, keep the mine in operation and the work force employed, and make a profitable return on investment. 

Past Practice and Custom at the Big Sky Mine:  Reserved Management Rights

            The Local Union proved and the Company agreed that until November 25, 1995, the past practice at the Big Sky Coal Company had been that all available Classified Employees could work when coal-processing work was done on Saturday.  However, the Company argues that times have significantly changed and the competitive nature of the industry now demands that the Company not “over staff” on Saturdays when crushing is done but when no product is loaded out of the mine.  The Company claims it has the inherent right.  The Local claims the past practice is binding and that the Company violated the WSA 1992 by not making work available to all Classified Employees at the mine that day.  Both binding past practice and custom and reserved management rights will next be considered.

            Saturday is usually considered an “idle day: in a mine, like Big Sky, that does not work seven days a week and does not schedule its full complement of Classified Employees for the particular day.  The term “idle day” is not defined in the WSA 1992 and has not been defined in previous national agreements although the term has regularly appeared in the Article dealing with wages and hours in national agreements and still appears in WSA 1992’s Article IV at Section (c) and in (5)(6) and at Section (d) at (5).  An idle day has been defined as any day at a mining operation when coal is not produced or processed - a non-production day.  See Sewell, Arb.  Rev. Bd. Dec. No. 78-20 at 20.  However, a precise meaning of “idle day” accepted by all has eluded the industry despite the fact that the term appears in the Agreement.  For example, an idle day could also be a day when only part of the ongoing production stream is occurring and when only one process such as just crushing or just overburden removal is carried out.  For purposes of this decision, Saturday, November 25, 1995 will be deemed to be an idle day because the day was not a day scheduled for full production using all the mine’s regularly scheduled work force of classified employees. 

            Saturday is also a premium pay day requiring that all Employees be given equal opportunity to have the available work.  An idle day need not be a Saturday but can be any day except a Sunday or Holiday under the Agreement.  There was no lay off underway at the Big Sky Mine on November 25,1995 and, therefore, no seniority considerations were needed when assigning available work from the idle day roster.

            Until the Arbitration Review Board was abolished several years ago, it was the final arbiter of conflicting district arbitration decisions.  The Board was a creature set up by the Bituminous Coal Operators Association (“BCOA”) and the UMWA.  Of the precedent setting decisions one, Number 78-3 in 1979 dealt with the interplay between past practice and reserved management rights.  Local Union 4426, District 5, UMWA and Harmar Coal Company, Harmar Mine, District Arb.  No. 78-5-78-12 (Hillard Kreimer, Arb.  9/18/78, Rev. Case No. 78-5, Arb. Rev. Bd. Dec. No. 78-3 (Ch. Ump.  Paul L. Selby, Jr., 5/21/79), at 5-7.

            In Decision 78-3, a snack break at the underground Harmer Mine was the past practice at issue.  Noting that the Employer is entitled to direct the work force, there was neglect on the part of the foreman but no direction to start the snack break practice.  No work was assigned and the men took the time for a snack break and the practice began.  The Chief Umpire stated:

Arbitral authority abounds in all industries which cautions that mere neglect to assert a right or an authority is to be examined carefully before it is to be held to be a creation of a binding practice, especially where other contractual principles have created the right or authority.  Such a limitation on creation of practice has been utilized to protect both employees and employers against misconstruing neglect into acquiescence in binding practices.  In view of the undoubted right to direct work forces specified in this Agreement [referring to the National Agreement then in effect] and the concept of conflict where practices improperly limit the Employer’s reserved rights as discussed in Decision No. 36, there is considerable caution to be used in construing this form of development into a binding practice.

Id. at 5,6    

One criterion for determining the existence of a past practice, its scope and application and likely conflict, Umpire Selby noted, is to examine the manner in which it was created and under what circumstances.  Dec. 78-3 at 5.  There was no testimony as to how or when the practice at Big Sky was created.  Apparently, a traditional practice was allowed to continue.

            At Big Sky, it is clear that there is a long history, at least of 22 years in the testimony of one employee, that all employees worked on a “run day.”  Another long-term employee made clear that when coal was “pushed in” on a Saturday and crushed the day was a production day because coal was being processed.  On a Saturday, all Classified Employees were given the opportunity to work when coal was being processed.  The term  “pushed in” or “pushing in” appears to mean to both the Local and the Company that coal taken out of the pit previously but not on the same day is pushed into the hopper for crushing or is moved into the storage silo.  Saturday work involving pushing in has historically been a day when all Classified Employees at the mine were given the opportunity for work.[12]

            The Company concurred that until Saturday, November 25, 1996, the past practice at the Big Sky Mine was let all Classified Employees work on a Saturday if pushing in were to be done.  That the Company recognized and acquiesced in the practice is clear because the Company, in recent times since the WSA 1992 was signed, has frequently talked to the Local’s officials in an effort to change the practice by mutual accord.  The practice at Big Sky was neither bargained out of the WSA 1992 nor modified by mutual agreement.

            Does the historical practice constitute a binding practice that cannot be changed unilaterally by the Company without violation of the WSA 1992?  The answer is “no” for reasons to follow.

            Article XXIII, Section (b) [Prior Practice and Custom], and Article II, Section (d) [Management of the Mines} support the finding.  In XXIII (b) the controlling language is:

 [a] nd all local agreements . . . and customs heretofore established in conflict with this Agreement are hereby abolished.  Except when abolished by mutual agreement of the parties, all prior practice and custom not in conflict with this Agreement shall be continued.  .  .   .  (Emphasis added).

The custom and practice became “established” only because it was allowed.  Neither party supplied any writing to suggest that the practice or custom was ever memorialized.  No district agreement concerning the practice was ever exchanged within 6 months after the effective date of the WSA 1992 as required by Article XXIII’s second paragraph.  The Company had the right to end the custom and practice unilaterally because the practice conflicted the WSA 1992.

            The Company sought to make the change regarding Saturday pushing in and work assignments.  The local was not obligated to and did not enter into an accord to allow the change.  But the Company was not legally obligated to obtain the Local’s accord because the right of the Company to manage the mines and the working force is reserved to the Company under Article II, Section (d).  So long as the Company does not arbitrarily or capriciously ignore Classified Employees’ rights in the Agreement.  The Company could and did unilaterally change the past practice within its reserved right to manage the mine.  

            The Company rationally sought to reduce its controllable expense by working only the small number of Classified Employees necessarily needed to carry out the crushing and loading functions needed on Saturday, November 25, 1995.  The Company gave the available Saturday work opportunity to Classified Employees and paid premium pay, as it is required to do under the WSA of 1992.  Moreover the Company adhered to the language of Article IV [Wages and Hours], Section (c)‚ [Mines Which Operate Six Days or Less in Each Week] and at (2) (6) [equal opportunity on premium pay days] and (e) [Saturday is premium pay day]. 

            Unlike former agreements where the controversy over whether processing was equivalent to production as the predicate to awarding work to all Classified Employees on Saturday, the controversy has been laid to rest in the WSA 1992.  There, Article IV, Section (c) gives all [Classified] Employees the right to work the sixth day [Saturday premium pay day] on days on which the mine loads coal from the pit and processes coal, and that Classified Employees shall be given equal opportunity to share the available work on premium days.  The language uses the conjunctive word  “and” and not the disjunctive word “or” and is presumed to have been used knowingly and deliberately by the negotiators before agreeing to the WSA 1992.  No coal was loaded from the pit on Saturday, November 25, 1995.  Only processing was done that day.  Under the present language of the Agreement, only the number of Classified Employees needed to perform the crushing and loading duties were needed for the sixth day premium pay work day.

            I find that the Company was not in violation.

            ORDER AND AWARD

            Grievance number 12495 is denied.

            DATED this 30th day of March 1996.


                                                                                    David K. Robinson, J.D., Arbitrator
                                                                                    5124 Costabella Lane
                                                                                    Las Vegas, Nevada 89130-5322
                                                                                    (702) 656-3876



            I certify that I mailed the original or a copy of this legal instrument by first class mail, postage paid, to the persons at the addresses shown below on April 1, 1996:


                                                                                    Nancy Neal, an employee of
                                                                                    David K. Robinson, P.C.

1.         Local 1575, UMWA District 15.  c /o Bill Johnson, Route 3, 910 Sunrise Drive, Hazen, ND 58546;

2.         UMWA, District 15, 6525 W 44th AVE, Wheatridge, CO 80033;

3.         J. Anthony Baca, Director Human Resources, Peabody Western Coal Company,

1300 South Yale Street, Flagstaff, AZ 86001; and

4.         Rod Hatten, Eller & Associates, Inc., 2535 Washington RD SE 1111, Pittsburgh, PA 15241.

[1]            All employees. . . as the number of days on which the mine loads from the pit and processes coal and shall be given the opportunity to share the available work .  . .   . (emphasis added).

[2]           The relevant proposed changes by  Company (Exhibit Union 40) were:

            Article IV(c)(2) delete“ and processes coal.”

            Article IV(c)(8) change lines 3 and 4 to read, “Agreement, but the employer shall be permitted to process and load previously mined coal and stockpile coal for shipment on any day.”

[3]           BNSF is the acronym for Burlington Northern Santa Fe.  Before the railroads merged, Big Sky was serviced by Burlington Northern.

[4]           I am using the term “Saturday Work” to describe the Premium Pay day at issue here.  Article IV (e)

[5]           World War II (“W.W.II”) was raging at the time and coal production was vital to steel production and National Security.

[6]           The last sentence about layoffs discloses, without saying so, a practice in pre W.W.II days of laying off workers on certain work days as a cost cutting measure.

[7]           For some time in earlier times, the seniority article was including in the analysis for resolving the available work issues.

[8]           Article IV (d) (6) mandates that  idle day work must be equally shared in accordance with past practice and custom.

[9]           Sewell Coal Company, Holcomb Mine and Local 8136, District 1, UMWA  (Arb. No. 78-31-78-40 (Stanley H. Sergent, Jr., 2/9/79 and Clinchfield Coal Company, Central Shop and Local 7950, District 28, UMWA, Arb. No. 78-28-78-60 and 61 (Samuel S. Perry,  Arb., 2/2/79),  Arb. Rev. Bd. Dec. No 78-20 (Paul L.. Shelby, Jr.  Ch. Ump., 12/12/79).

[10]          The language of Article IV(d)(3) began with “All Employees at mines which produce coal six (6) days per week . . .   .

[11]          Kentucky Carbon Corp. and Local 1416, District 30, UMWA, Arb. No. 78-30-79-185 (W. Thomas Mulhall, Arb., 7/24/79), Arb. Rev. Bd. Rev. Case 78-239  (Arb. Rev. Bd. Dec. 78-61, (Richard I. Bloch, Ch. Ump., 2/3/81).

[12]          Overburden removal crews are  regularly scheduled to work on Saturday.

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | NLRB Info | Arbitration | Articles | Law Firms | Site Map 


Get your 28 day trial now 

Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.