Title: Jim Walter Resource, No. 5 Mine and United
Mine Workers of America, District 20, Local Union 2368
OPINION AND AWARD
FOR THE EMPLOYER:
Richard L. Cates, Manager Human
Resources and Spokesperson
FOR THE UNION:
Mike Clements, District 20
Representative and Spokesperson
STATEMENT OF THE
Jim Walter Resources (“Company”) and United Mine Workers of America, District 20, Local Union 2368 (“Union”) are parties to a collective bargaining agreement which became effective January 1, 2002. The Agreement governs the wages, hours, and other terms and conditions of employment of all production and maintenance employees at the Company’s mining operations. It also provides for a grievance procedure culminating in final and binding arbitration as the mechanism to be used to resolve any disputes concerning the interpretation or application of its terms.
At issue in this case is a grievance protesting the Company’s decision to discharge the grievant, Earl Woods, for insubordination in terms of his failure to remain at his assigned work station until relieved by the oncoming shift on July 29, 2002, thereby violating a Last Chance Agreement he had entered into on May 28, 2002. It is the Union’s position that the discharge of the grievant was not for just cause. As a remedy the Union requests that the grievant be reinstated with full seniority and made whole for all lost earnings and other benefits.
Following the selection of the undersigned as arbitrator a hearing was conducted at Birmingham, Alabama, on September 5, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence, to cross examine witnesses called by the opposing party, and to offer arguments in support of their respective positions. At the conclusion of the hearing the record was closed pending the issuance of this Opinion and Award.
SUMMARY OF THE
The events which gave rise to the instant dispute occurred on Monday, July 29, 2002, on the evening shift at the Jim Walter Resources No. 5 Mine. The work force at the Mine is composed of some 315 miners who are represented for purposes of collective bargaining by the United Mine Workers of America. The Mine produces coal with three continuous miner sections and a Longwall section twenty-four hours a day, five or six days a week. The continuity of production is accomplished by means of the hot seat change at the face process.
The grievant, Earl Woods, is a relatively new employee, having been hired at the No. 5 mine on April 8, 2002. In May, 2002, the grievant was discharged for insubordination as a result of his failure to follow the directions of a supervisor. Following discussions with the Union the Company agreed to reduce the discharge to a disciplinary suspension without pay with the understanding that the grievant would enter into a Last Chance Agreement (LCA). The agreement is dated May 28, 2002, and was signed by the grievant and his Union representative. It established several terms and conditions of employment that the grievant was required to comply with in order to remain employed by the Company. One such condition was that the grievant “will conduct himself in such a way as to reflect a total disdain for any actions which could be considered insubordinate.”
On the evening of July 29, 2002, the grievant was working under the supervision of Outby Foreman Danny Crumpton, who was also a relatively new employee, having been hired in February, 2002. Crumpton testified that because the employee who normally did the cleaning work around the Longwall B header was absent, he assigned the grievant to perform that task. According to Crumpton, the grievant had performed that job before and knew what was expected of him. He stated that his instructions to the grievant included cleaning the header, keeping it in operation, and to remain between shifts until his relief arrived. He also told him that if he had any problems to give him a call.
The evidence showed that certain belt headers, such as the Longwall B header, are staffed twenty-four hours per day due to their critical locations and the potential for coal spillage, which can cause the belt to be turned off and production to cease.
Crumpton testified that near the end of his shift he was in Section 2 at the end of the track when he received a call at about 10:00 p.m. to take some brake fluid to the Number 6 section. When he arrived there he assisted Walt Chapel in putting some brake fluid in the master cylinder and checking the brakes on the mine car. This side trip caused him to be unusually late to arrive at the service shaft bottom area where he got in the mantrip cage to ride out of the mine. Crumpton testified that when he arrived at that location he saw Leonard Denson standing there and followed him and Chapel into the cage. Crumpton stated that he did not have any knowledge that the grievant was in the cage when they came out of the mine that night. He added that he did not discover that the grievant had not remained at the header as instructed until the following day.
On cross examination Crumpton acknowledged that up to the time of the incident in question he never had any problems with the grievant and that he always did what was asked of him.
Jamie Utley has been employed at the Mine for seventeen years and held the position of Communication Supervisor on the night in question. He testified that around 10:00 p.m. that evening he received a telephone call from the grievant informing him that he needed a man bus at the Longwall B header for transportation out of the mine. Utley testified that he then attempted to contact Haulage Foreman Len Denson by radio to tell him that a bus was needed at Longwall B, but before he could respond the Longwall crew called and said that they would pick the grievant up on their way to the bottom.
On cross examination Utley testified that although he was aware that the Longwall B header requires continuous attention, he did not tell the grievant that he had to remain at the header because he assumed that someone else was there to attend to it. He added that he had no knowledge of the grievant’s assignment that night, but did know that he was stationed at the Longwall B header. In addition, he did not know that the grievant had been instructed to remain at the header.
Trent Thrasher has been Mine Manager at the No. 5 Mine since March, 2002. He was a participant in the 24/48 hour investigatory meeting that was conducted after the grievant was suspended as a result of disobeying his supervisor’s instruction to remain at the Longwall B header until relieved on July 29. Thrasher testified that during that meeting the grievant stated that while working at the header he contacted the Communications Supervisor by phone so that he could arrange for transportation to the mantrip. The grievant also indicated that Crumpton was aware that he had left the mine, as evidenced by the fact that he had seen him in the service shaft area between 10:30 and 10:40 p.m., and that other employees could verify that fact. The grievant then called several witnesses on his behalf. They included Craig Rosser, who stated that he and the grievant arrived at the service shaft area at around 10:30 to 10:40 p.m. and that Crumpton was there standing at the handrail. Rosser also stated that Crumpton approached the grievant and asked him how his shift went. Thrasher testified that he did not believe Rosser’s story because it conflicted with the grievant’s account of where certain individuals were located at the service shaft bottom area.
The second witness, Eddie Maxwell, could not verify the grievant’s story because he was unsure as to whether Crumpton was at the service shaft area.
Thrasher testified that a third witness, Walter Chapel, likewise did not support the grievant’s claim. Chapel testified that he and Crumpton arrived at the bottom at around 10:50 p.m. and that when they approached the cage no one was around. He added that he and Chapel had to move fast to get on the cage because it was about to leave.
Thrasher further testified that the production down time report for the date in question showed that the area the grievant was assigned to work experienced substantial down time because the Longwall B belt gobbed out. The total amount of lost belt time was 140 minutes. Thrasher explained that the Longwall produces eighty percent of the coal at the mine and that the belt mine minutes are valued at $250.00 per minute. Consequently, the monetary loss due to the grievant leaving the header was substantial.
On cross examination Thrasher stated that he did not believe that Utley should have called someone or instructed the grievant to stay at the header. He explained that that is not a part of Utley’s normal job duties and he had no way to know that the grievant had been instructed to stay at the header.
Co-worker Craig Rosser was called as a witness on the grievant’s behalf. He testified that as he and another employee were coming out of the mine he heard Communications Supervisor Utley call for Len Denson to pick up the grievant at the Longwall header and he returned the call to Utley and told him that they would pick up the grievant.
Rosser testified that they arrived at the cage at about 10:45 and saw Crumpton, who asked the grievant how things went that night. He stated that he was certain that Crumpton was in that area when they arrived. He added that the cage was on the bottom and the gate was open, and he thought that Crumpton was the last to enter the cage.
The grievant testified that at the beginning of his shift Crumpton asked him if he had seen Walter Blair, the employee who normally worked at the B header, and he told Crumpton that he had not. Shortly thereafter Crumpton informed him that Blair was absent and he asked him to work in his place at the B header. According to the grievant, he then asked Crumpton if he could have permission to come out of the mine when his shift ended at 11:00 and Crumpton said okay.
The grievant testified that after spending the shift working at the header he called the Communications Supervisor shortly after 10:00 and told him that his boss said that he could leave the mine at the end of the shift and that he needed a ride. Shortly thereafter he got a ride with Maxwell and Rosser to the service shaft bottom area, where he sat down on a tool box. He stated that Crumpton, who was standing a few feet away by a handrail, asked him how it went that night and he said, “fine,” and that he had worked both headers. He stated that Crumpton did not question him as to why he had left the area.
The grievant testified that the following day Foreman Randy Dixon and Stacey Pippen, his regular Foreman, approached him and asked who had told him to leave the header. He responded that Crumpton had given him permission to leave at the end of the shift, and that as a result he had come out of the mine at 11:00 as he always did.
The grievant explained that since he was working under a Last Chance Agreement he wanted to be sure to follow all of the rules because he wanted to keep his job. Consequently, he did everything his Foreman told him to do.
The grievant further testified that he had received no training on headers during his short period of employment and had never worked on a header by himself prior to the evening in question. He added that when he spoke with the Communications Supervisor he was not told that the header had to be manned at all times.
DISCUSSION AND DECISION
As a beginning point in analyzing the merits of this grievance it is important to point out that a significant distinction exists between the traditional just cause analysis, which is ordinarily applied in disputes involving discipline and discharge, and the type of analysis which must be applied to the case at hand. In most cases the just cause standard requires a determination as to whether the grievant is in fact guilty of the misconduct of which he or she is accused, and if so, whether the discharge penalty is appropriate to that offense in light of any mitigating or extenuating circumstances. In contrast, the scope of the inquiry in the present case is limited to the question of whether the grievant violated the terms and conditions of a so-called Last Chance Agreement because the level of discipline appropriate for such a violation has already been established pursuant to that agreement.
The undisputed facts of this case show that the grievant voluntarily entered into a Last Chance Agreement on May 28, 2002, as an act of leniency on the part of the Company and as an alternative to the discharge action that was contemplated at that time for the grievant’s insubordinate failure to follow the directions of his supervisor. The effect of that agreement was that it imposed special terms and conditions of employment on the grievant and it was expressly agreed to by the grievant and the Union. Specifically, in exchange for foregoing its right to discharge the grievant and giving the grievant a chance to correct his behavioral problem the Company received an unequivocal commitment from the grievant that he would be an exemplary employee and an asset to the Company and that he would abide by all of the Company’s work rules including, in particular, avoiding any action which could be considered insubordination. It was also expressly understood and agreed among the grievant, the Company, and the Union that the grievant’s failure to keep his commitment would be cause for immediate discharge.
In an earlier decision, Drummond Co., Inc., and UMWA District 20, Local 1948, LA 250 (1996). I explained how last chance agreements had achieved an important stature in labor/management relations:
So-called “last chance” agreements which impose special terms and conditions of employment have become increasingly commonplace in industry, as Employers and Unions seek to find mutually satisfactory solutions to a variety of disciplinary problems. There is no question that until an employee’s problems affect his work performance the Employer has no right to discipline or to institute special conditions of employment. However, once an employee’s disciplinary problems have reached the level at which discharge is imminent an agreement that imposes special conditions of employment may be offered by the Company or sought by the Union in an effort to salvage the employee’s job or give him a chance for rehabilitation. In that respect it is a commendable undertaking and one to be supported by arbitrators.
As a general rule, arbitrators encourage programs of salvage and rehabilitation by strict enforcement of such last chance agreements in accordance with the terms that the parties, including the employee, have been willing to accept. However harsh or strict such terms may be and even though the arbitrator might well regard such conditions as unfair, that should not be his concern. Once the arbitrator starts substituting his judgment for that of the parties he has exceeded his authority, and more importantly has jeopardized the future use of such agreements for employees who are at the brink of losing their jobs. This is because an Employer who has been willing to forego assertion of its right to termination for just cause in return for a strict and absolute agreement of this nature would be extremely reluctant to take a chance on such an agreement in the future.
The Arbitration Review Board has made its position regarding the efficacy of last chance agreements abundantly clear in Decision No. 98, which has precedential value. In that decision the Board stated:
To bring a last chance agreement within that purview [of a “district or local agreement” under Article XXVI, Section (b)] we believe, is to overlook its true nature. As their name implies, last chance agreements came into being – at least, characteristically, and certainly it is true here – when an employee who has compiled an inadequate record commits yet another offense. They cover an employee who is asking for a reprieve in lieu of discharge and who is free to take his chances in arbitration as a discharged employee if he considers the term of a proposed last chance agreement as too stiff. An employee who has that freedom and foregoes it in accepting a last chance agreement must surely be seen as having acted in his own best interest. He is not entitled, subsequently, to be absolved from his obligations under the last chance agreement on the grounds of the stringency of its terms or the lack of the quality of the treatment relative to other employees. To grant him such absolution is to overlook his special status at the time he made his bargain.
Consider the impact of allowing the terms of last chance agreements to be subjected to scrutiny and rejection when the time comes that they are to be enforced against the employee. Management, in that event, can hardly be expected to continue to be receptive to enter into last chance agreements, and the abandonment of a last chance agreement, it seems undeniably true to us, would mark the abandonment of a constructive and mutually beneficial labor relations technique. Last chance agreements do not always achieve their objective, but it is simply a fact that many an employee has been “saved” by them and has gone on, to everyone’s advantage, to be a useful member of the industrial community. Last chance agreements as an institution, we are saying, are deserving of encouragement and backing. They will not long survive if one side or the other ends up having it both ways.
In sum and in short “last chance” cases are not the same as just cause discharge or discipline cases under the general terms of the collective bargaining agreement. By agreement the Employer, Union, and individual employee have established an automatic and immutable penalty. Therefore, there is no authority for an arbitrator under such circumstances to require the application of progressive discipline or to consider mitigating factors. The sole question to be decided is whether the grievant violated the last chance agreement. If that question is answered in the affirmative then the discharge must be upheld. However, considering the severity and finality of the results – i.e., the loss of the individual’s employment and the stigma attached thereto – the Employer is required to present sufficient proof to clearly and convincingly establish that the violation has occurred.
In this case grievant the has been charged with an act of insubordination in terms of his failure to remain at his assigned workstation until relieved by a replacement on the oncoming shift on July 29, 2002. As explained in the foregoing discussion, based upon the fact that the grievant’s continued employment is subject to the terms of a Last Chance Agreement it is beyond a legitimate dispute that this offense, if proven, would constitute grounds for discharge. Thus, the only question to be addressed is whether the grievant engaged in the act of insubordination of which he is accused. Based on several considerations I have determined that the evidence that was offered to prove the grievant’s guilt is sufficiently inconclusive as to warrant giving the grievant the benefit of the doubt.
To begin with, since Danny Crumpton was not the grievant’s regular foreman, and because both Crumpton and the grievant were relatively inexperienced in the mining industry and had different ethnic backgrounds, a strong possibility exists that the grievant’s failure to remain at the header until he was relieved was simply the result of a misunderstanding or lack of effective communications between him and Crumpton.
Second, due to his inexperience and his lack of training in the importance of keeping certain headers manned at all times, the grievant may not have been aware that he was expected to remain at the header until relieved.
Third, Crumpton’s testimony that the grievant was a good worker and never created any problems and always did what was expected of him tends to belie any assertion that the grievant willfully disobeyed Crumpton’s directive to remain at the header until relieved.
Fourth, given the fact that the grievant was working under a Last Chance Agreement and was fully aware that the slightest misstep could cost him his job, it defies both logic and common sense that he would deliberately disobey Crumpton’s instruction and leave the mine before he was relieved, knowing full well that he was likely to be seen by Crumpton when he arrived at the mantrip.
Fifth, the grievant’s testimony that he did in fact see and speak with Crumpton at the mantrip was corroborated by a co-worker who was not shown to have any bias in favor of the grievant or any motive to be untruthful. Thus, the fact that Crumpton did not confront the grievant and ask him why he left the belt header raises some doubt as to whether Crumpton had actually instructed the grievant to remain at the belt header until relieved.
Finally, since Communication Supervisor Jamie Utley, an experienced employee, was aware that the Longwall B header, where the grievant was assigned on the evening in question, requires constant attention, it makes no sense that he would not have questioned the grievant about whether he had someone to relieve him when he called for a ride out of the mine.
Having determined that there is sufficient doubt regarding the grievant’s culpability to disallow the invocation of a Last Chance Agreement as a basis for terminating his employment, the only remaining issue concerns the appropriate remedy. In that regard I have concluded that the grievant is entitled to reinstatement with full seniority but that he is not entitled to back pay for lost earnings or other benefits. The rationale for that conclusion is that since the grievant has been given another chance, not on the basis of a definitive finding that he did not engage in the misconduct of which he is accused, but because he has been given the benefit of the doubt in that regard, a back pay award would unjustly enrich him and unfairly penalize the Company.
In accordance with the foregoing opinion and for the reasons set forth therein the grievance is sustained in part and denied in part. The Company is hereby directed to reinstate the grievant, but he will remain subject to the terms of the Last Chance Agreement. His claim for back pay for lost earnings and other benefits is disallowed.
September 27, 2002
September 27, 2002
Mr. Mike Clements
Mr. Michael D. Hall
Enclosed herewith are two copies of my Opinion and Award in the above-captioned dispute. Also enclosed is my statement for services rendered and expenses incurred in this regard. It has been a pleasure to assist you in this matter and I will look forward to the opportunity to be of service in the future.
Please advise me as to whether or not you consent to publication of the award. If you decline to respond to this inquiry within the next thirty (30) days, I will assume that you have no objection.
Very truly yours,
Stanley H. Sergent
September 27, 2002
Mr. Mike Clements
Mr. Michael D. Hall
Case NO. 5-JWR-02-20-02-54
To fee: (Travel, hearing, study, and preparation) $4,000.00
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Mr. Richard L. Cates
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028