Title: Pittsburgh & Midway Coal Mining Co. (Kemmerer
Mine) and United
Mine Workers of America, District 22, Local Union 1307
OPINION AND AWARD
FOR THE EMPLOYER:
Rodney Hatten, Consulting
Associate and Spokesperson
FOR THE UNION:
Fred A. Lupo, President and
STATEMENT OF THE CASE
The Pittsburg & Midway Coal Mining Co. (“Company”) and the United Mine Workers of America, Local Union 1307 (“Union”) are parties to a collective bargaining agreement which became effective August 2, 2000. The Agreement governs the wages, hours, and other terms and conditions of employment of all production and maintenance employees employed at the Company’s Kemmerer, Wyoming, Mine. 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 which was filed by the Union on May 15, 2001, challenging a decision by Management to charge the grievants with a personal/sick leave day for a day on which they were unable to report for work as a result of a road closure due to a heavy snow storm. The grievance reads as follows:
Mine management has violated an agreement made between Local 1307 and mine management on “Snow Days.” Also we believe that this policy of snow days is an established past practice and custom and has not been mutually abolished. Therefore, we ask that with proof of road closures, mine management will not penalize employees by taking personal days or disciplining employees on this type of day. We ask that the company return our personal days and uphold their agreement with Local 1307.
Following the selection of the undersigned as arbitrator a hearing was conducted at Kemmerer, Wyoming, on April 17, 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.
Did the Company violate the Agreement when it unilaterally charged each of the grievants for a personal/sick leave day for their absence from scheduled work on Thursday, May 3, 2001, as a result of a road closure due to inclement weather?
ARTICLE I – ENABLING CLAUSE
WITNESSETH: It is agreed that this contract is for the exclusive joint use and benefit of the contracting Parties, as defined and set forth in this Agreement. It is agreed that the United Mine Workers of America is recognized herein as the exclusive bargaining agency representing the Employees of the party of the first part employed at said mine. It is further agreed that as a condition of employment all employees at said mine shall be, or become, members of the United Mine Workers of America, to the extent and in the manner permitted by law, 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….
ARTICLE IA – SCOPE AND COVERAGE
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.
ARTICLE VIII – ALLOWANCES
Section (e) Personal or Sick Leave
(1) During each calendar year of this Agreement, beginning with the year 2001, each classified Employee with one (1) year or more of classified service with the Employer shall become eligible for Personal or Sick Leave, at his regular rate for any eleven (11) working days on which the Employee is absent from work for reasons of sickness, accident, emergency or personal business. During the year 2000, the foregoing Personal or Sick Leave days shall be limited to a maximum of ten (10).
(5) In the event an Employee is absent from work, other than because of Union related business, and has not requested a Personal or Sick Leave day in advance of his absence, the Employer may pay the Employee with a Personal or Sick Leave day if the Employee has not already exhausted such days.
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ARTICLE XXIV – DISTRICT AGREEMENTS
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 where abolished by mutual agreement of the Parties, all prior practice and custom not in conflict with this Agreement shall be continued. Whenever a conflict arises between this Agreement and any district or local agreement, this Agreement shall prevail.
SUMMARY OF THE EVIDENCE
The Kemmerer Mine has been owned and operated by the Pittsburg & Midway Coal Mining Co. since 1981. It is a surface mine which provided employment for approximately two hundred eighty employees at the time the instant grievance was filed. Two hundred twenty-one of those employees were hourly production and maintenance employees represented for purposes of collective bargaining by Local Union 1307 of the United Mine Workers of America. The bargaining relationship between the Company and its predecessors and the UMWA dates back many years. Until 1975 the relationship was governed by the National Bituminous Coal Wage Agreement(NBCWA). Since 1975 it has been governed by a series of collective bargaining agreements known as the Western Coal Wage Agreement (WCWA).
The grievants in the present case are Dennis Heap, Michael Davis, Stephen Fox, and Dean Lamb. Heap has been employed by the Company since October 13, 1975; Davis since July 29, 1974; Fox since March 21, 1977; and Lamb since March 7, 1977. At the time the grievance arose Heap was classified as Grader Operator; Davis and Lamb as Dozer Operators; and Fox as a Truck Driver. On that occasion Davis, Fox, and Lamb were scheduled to work on the day (8:00 a.m. to 4:00 p.m.) shift and Heap was scheduled to work on the swing (4:00 p.m. to midnight) shift.
The event which gave rise to the instant dispute occurred on May 3, 2001, which was a production day on which all classified employees of the Mine were scheduled to work. On that day all of the seventy-two graveyard (12:01 a.m. to 8:00 a.m.) shift employees that were expected to work did work; all but three (all of whom were grievants) of the seventy-nine day shift employees who were expected to work did work; and all but one (the remaining grievant) of the seventy swing shift employees that were expected to work did work. Of the nine employees who were scheduled to work that day but did not do so and were paid for a personal or sick leave day, none were absent from work because of “Union related business” as referred to in Article VIII, Section (e) paragraph (5) of the Agreement.
Four of the nine employees who were scheduled to work on May 3, 2001, but did not do so requested a personal or sick leave day and their requests were honored. Five of the nine employees did not request a P&S day. However, the Company paid each of those five employees (four of whom were the grievants) with a personal or sick leave day pursuant to Article VIII, Section (e)(5) of the Agreement. Immediately prior to the day in question each of the grievants were entitled to at least one and as many as twelve P&S days in 2001.
The Company’s decision to pay the grievants a personal or sick leave day for May 3, 2001, resulted in the instant grievance. It is the contention of the grievants and the Union that a long-standing local agreement and practice exists at the Kemmerer Mine under the terms of which the Company may not unilaterally charge an employee with a personal or sick leave day for an unavoidable absence resulting from a road closure, commonly referred to as a “snow day.”
Two of the four grievants, Mike Davis and Steve Fox, were present to testify at the arbitration hearing. Davis testified that on the day in question he and Fox were scheduled to work the day shift and were riding together in his car from Evanston, Wyoming, to the Kemmerer Mine, a distance of approximately fifty miles. When they arrived at Interstate 80 they were prevented from going any further due to a road closure because of a snow storm. The fact that the road was closed was confirmed in a letter from the Wyoming Highway Patrol stating that on May 3, 2001, I-80 was closed from 4:30 a.m. until 6:00 p.m.
Davis testified that he and Fox waited a while to see if the road would open, and when it did not they called in and reported off. Fox testified that he checked the police scanner and learned that there was no authorized traffic on the only other alternative route to work. He also noted that ignoring a police road block could result in a severe fine, or even imprisonment. Thus, Davis and Fox felt that they made a reasonable effort to report for work but were unable to do so as a result of the road closure. Consequently, they were both aggrieved when they were charged with personal leave for the May 3 date that they were unable to report for work.
Davis testified that in the twenty-eight years that he has been employed by the Company he had missed work due to snow days no more than six times. He stated that he was always given an excused absence for such days and was never disciplined by being charged with personal leave. He explained that the reason he objects to being charged with such leave is that he does believe that he should be required to forfeit the right to choose when he can use his personal leave days.
Mike Hunzie has been employed by the Company since 1968 and has held various offices with the Union since 1977. He testified that the snow day issue has been the subject of controversy at the Mine for many years. According to Hunzie, for many years the parties operated under a policy that had been adopted by Mine Manager Fritz Gottrom, who retired from the Company in or around 1990. Under that policy if employees were unable to report for work due a road closure resulting from a snow storm they were not charged with personal or sick days involuntarily.
Hunzie testified that he participated in the 1981 negotiations for the Western Coal Wage Agreement. He recalled that during those negotiations one of the concerns the parties tried to address was that of employees who did not work regularly. According to Hunzie, the insertion of the word “may” in the language of Article VIII(e)(5) of the Agreement was designed to give the Company the option to charge irregular workers with personal or sick days. It was not intended to penalize an employee who had a legitimate reason for being absent from work.
Martin Argyle has been employed by the Company since 1973 and has held various Union offices, including that of President of the Local from 1984 to 1990. He testified that for many years the parties operated under an unwritten understanding that had been reached with Mine Manager Gottrom that when employees were absent from work due to road closures they would be excused and not charged with personal leave days. According to Argyle, that policy was continued in effect by Mine Manager Cliff Rice when he replaced Gottrom in 1989.
Argyle testified that he lives fifty-two miles away from the Mine and was prevented from working on two occasions due to road closures. On both occasions his absences were excused and he was never disciplined.
Albert Harmon has been employed by the Company since 1977 and has been President of the Local Union since 1993. He resides in Coalfield, Wyoming, which is located some fifty-four miles away from the Kemmerer Mine. He testified that there were two occasions in late 1980 and early 1990 on which road barricades prevented him from reporting for work. On both occasions he was given excused absences pursuant to a local agreement.
Harmon testified that he was involved in a grievance that was filed on behalf of Jerry Boan in January, 1998. Boan had been charged with a personal leave day when he was unable to report for work due to weather conditions. The grievance form was entered as an exhibit and it shows that the Company and Union agreed to meet in order to determine whether the “road closure practice is fair to all their employees.” According to Harmon, such a meeting never took place because the parties understood and agreed to continue to follow the practice.
Harmon next referred to a similar grievance that had been filed in May, 1999, by three employees who had been charged with personal leave days when they were unable to report for work because of a road closure in and out of Kemmerer. The settlement of that grievance reads as follows:
For settlement of this instant grievance grievants’ sick days shall be returned and both parties agreed to abide by Article VIII, Section (e) of the Wage Agreement.
Harmon noted that a similar grievance was filed by another employee in April of 1999 requesting the restoration of a personal day that had been charged against her when she had been unable to report for work due to a road closure. The grievance was settled on the basis of the following:
Due to the extraordinary efforts made by this individual employee – (i.e., radio called supervisor, headed to work, was physically turned around). In this instant case the employee’s sick day will be returned.
Finally, Harmon alluded to another grievance that had been filed by an employee in April, 2000. That employee had likewise been unable to report for work due to a road closure and was charged with a personal leave day. At the third step of the grievance procedure the grievance was held in abeyance for twelve days to give the grievant time to provide documentation regarding the road closure. Because the documentation was never provided, the grievance was never formally settled or resolved.
Tom Geesey began his employment with the Company in 1970 and has held various positions since that time. He was a Production Manager from April, 1985, to 1996 and has been Manager of Human Resources and Labor Relations since 1996. He testified that during the years that he has been employed by the Company there have been a number of changes in the Agreement relating to personal and sick leave days. For example, in 1975 employees received only five personal and sick leave days but they now receive eleven such days. He added that changes have also been negotiated in the Agreement which give the Company the right to charge employees who are absent because of snow days with personal and sick leave.
Geesey testified that prior to the Company taking over the Kemmerer Mine it was operated by Morrison/Knudson, a contract miner for Kemmerer Coal Company. Because Management at Morrison/Knudson could pass through costs to Kemmerer Coal they were not greatly concerned with the cost of absenteeism. When the Company took over the mine in 1980, managed by Vice President of Operations Fritz Gottrom, Gottrom recognized that employees had only five personal and sick leave days. As a result he adopted a policy that if an employee was absent due to a road closure his absence would be excused and he would not be charged with a personal and sick leave day.
According to Geesey, the so-called “agreement” or “past practice” that the Union relies upon to support its position in the present case was really just a matter of the way the Company chose to administer the contract at the time. In regard to the September 30, 1999, grievance settlement in which he was involved and which was submitted into evidence by the Union, Geesey explained that the three employees involved resided in Kemmerer and were charged with personal sick leave days because they could not get to work due to a road closure. He stated that in the interest of fairness the Company agreed to restore their personal sick leave days with the understanding that in the future the parties were going abide by Article VIII, Section (e) of the Agreement.
Geesey elaborated by stating that his understanding of that agreement is that in the future the Company is going to charge employees with personal sick leave for absences due to road closures for two reasons. First, because there are other ways they can get to work, and second, because they now have a total of eleven personal and sick leave days at their disposal.
When asked to explain his view as to why the instant grievance had been submitted to arbitration Geesey stated that it was because the Union believes that employees have the right not to report for work if the roads they originally used to travel to work is closed even if there are alternative ways of getting to work.
In regard to the issue of whether a local agreement or past practice exists which governs the instant dispute Geesey explained that if that were the case there would have been no need for the numerous grievances that have been filed through the years regarding this issue. Geesey added that since the September 30, 1999, settlement of a snow day grievance every employee who was absent from work on a snow day has been charged with personal or sick leave to his knowledge.
Tony Meacham has been employed by the Company since February, 1998, and is currently Operations Manager. He testified that he checked Company records and found no employee who was not charged with a personal and sick leave day when absent due to a snow day. He stated that he found two grievances that were filed by employees who objected to being charged with personal and sick leave days. Those grievances have been held in abeyance pending the outcome of this arbitration.
POSITIONS OF THE
The Union contends that when road closures occur employees have no choice but to observe them because they can be fined or even jailed if they do not. Moreover, it is unreasonable for the Company to expect employees to jeopardize their safety by attempting to travel to work on roads that are so dangerous and impassable that they have been declared closed by the authorities.
The Union maintains that since the early 1980s there has been a local agreement or understanding that if an employee is unable to report for work using his usual direct route as a result of weather conditions, he is to be excused and not charged personal and sick leave under Article VIII, Section (e). The Union also points out that the language of Article VIII, Section (e)(5) does not require the Company to charge an employee with a personal or a sick leave day for any absence for work other than because of Union related business. Instead, it simply says that the Company “may” pay the employee with a personal or sick leave day, thus making such payments optional.
The Company points out that the local agreement does not provide that Arbitration Review Board decisions have precedential effect at this Mine. Nonetheless, at least one arbitrator has ruled that arbitration decisions have set the standard for the industry. Consequently, they are useful guides for determining whether and under what circumstances a past practice or local agreement exists. According to the Company, the key elements of a past practice are that it must be clearly enunciated and acted upon over a long period of time and that there must be a meeting of the minds with regard to its terms. The Company maintains that even viewed in the light most favorable to the Union there is no meeting of the minds regarding snow days, as evidenced by the fact that it has been a subject of contention for many years.
In support of its position the Company points to Article XXIV(b) which makes it clear that if a past practice or local agreement conflicts with the Agreement it is abolished. According to the Company, even if the practice with respect to snow days that the Union relies upon did exist at one time, the language of Article VIII(e)(5) gives the Company an unqualified option to charge employees for absences from work due to snow days. According to the Company, the only limitation on the Company’s right to charge employees for a personal or sick leave day for any absence is for an absence related to Union business.
The Company asserts that it is not telling employees that they must try to report for work when it is not safe to do so or to break the law in order to try to report for work. The Company acknowledges that is a decision that is left to the employee. However, if the employee makes the decision not to come to work on a day he is scheduled the Company may charge him a personal and sick leave day. According to the Company, the Union is asking the arbitrator to rewrite the Agreement in order to grant employees a free day off so they can use their personal and sick leave days at a later date at their discretion.
The instant dispute concerns the extent of the Company’s authority to charge employees for a P & S day whenever they are absent from a scheduled day of work. Since this authority is derived from the language of Article VIII(e)(5) it is helpful as a beginning point in analyzing the merits of this dispute to review the history of this provision and understand how it evolved into its present form.
P & S days first appeared in an agreement between the Union and Bituminous Coal Operators Association (BCOA) known as the National Bituminous Coal Wage Agreement (NBCWA) of 1974, which was in effect throughout the country and included the Kemmerer Mine. From that year up to when the Western Coal Wage Agreement of 1981 became effective at the Kemmerer Mine (or until the NBCWA of 1988 became effective at other mines) there were no provisions in either of these coal wage agreements which gave the Employers any authorization to charge employees with P & S days when they were absent from scheduled work and had not requested a P & S day.
That lack of authorization notwithstanding, many employers chose to charge employees anyway, and this resulted in a number of grievances that were presented to panel arbitrators and the Arbitration Review Board for resolution. In several decisions that were issued in the early 1980s the arbitrators and the Review Board made it clear that under the terms of the NBCWA, up to and including the 1984 agreement, an Employer had no discretion to decide when or if an employee could be required to use a P & S day. That discretion was left solely to the employee.
The first NBCWA which permitted an employer to in effect “force” an employee to utilize a P & S day when absent from scheduled work was the NBCWA of 1988. The first such agreement in effect at the Kemmerer Mine was the WCWA of 1981. Although the language of Article VIII(e)(5) of the WCWA of 1981 is somewhat different than the corresponding language in the NBCWA of 1988, they both provide that an employer is expressly authorized to charge an employee with P & S day for a day he is absent from work for reasons other than proven sickness or Union-related business. The “proven sickness” exception was eliminated from the language of Article VIII(e)(5) in the 1987 WCWA.
Under the 1987 WCWA and the current Agreement of 2000, which governs the instant dispute, the Company is permitted to pay an employee and charge him with a P & S for nearly each and every day of absence from scheduled work, provided he still has days left. The only exception to this rule is if the absence is because of Union-related business.
After the 1988 NBCWA became effective, numerous grievances were filed throughout the industry challenging an employer’s right to charge employees with P & S days over their objection when they were absent from work, regardless of the reason for their absence. The overwhelming weight of arbitral authority on this issue has adopted the view that the provisions of the relevant contract language have given employers virtually unrestricted authority to charge employees with P & S days for any absence from scheduled work regardless of the underlying reasons for the absence.
The main thrust of the Union’s argument in the present case is that a local understanding or practice exists at the Kemmerer Mine under the terms of which employees have historically been excused from work and not charged with a P & S day when road closures due to snow prevent them from reporting for work. The Union maintains that this practice is still in existence and should be dispositive of the instant dispute.
In order to address this issue it is first necessary to understand what the term “past practice” means. As it is generally defined and understood in the context of labor/management relations, a past practice is a consistent and unequivocal response to a set of circumstances which occur with sufficient regularity over such an extended period of time that it is recognized and accepted by the parties as an implied term of the collective bargaining agreement. The generally accepted criteria for establishing the existence of a binding past practice are set out in the authoritative treatise How Arbitration Works, BNA 5th Ed., 632, as follows:
In the absence of a written agreement “past practice” to be binding on both parties, must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) regularly ascertained over a reasonable period of time as a fixed and established practice accepted by both parties.
Arbitral authority abounds with respect to the fact that evidence of past practice can be used to ascertain the meaning of ambiguous contract language or to fill in the gaps with regard to matters that are not specifically included in the contract. It is also well recognized that a practice has as much vitality as a written term of the contract itself and must be accorded the same respect as a written term of the Agreement. However, no matter how well established the practice may be, it is unavailing to modify contract language that is clear and unambiguous.
Arbitral authority also indicates that arbitrators are frequently hesitant to permit unwritten past practices or methods of doing things to restrict the exercise of legitimate functions of Management. An example of such hesitance was evidenced by an award that was issued by Arbitrator Whitley P. McCoy many years ago:
But caution must be exercised in reading into contracts implied terms, lest arbitrators start remaking the contracts which the parties themselves made. The mere failure of a Company over a long period of time to exercise a legitimate function of Management is not a surrender of the right to start exercising such right. If the Company had never, in fifteen years and under fifteen contracts, disciplined an employee for tardiness, could it thereby be contended that the Company could not decide to institute a reasonable system of penalties for tardiness? Mere non-use of a right does not entail a loss of it. Quoted in How Arbitration Works, (BNA 5th Ed.) page 440-441.
After applying these concepts and principles to the instant case, I find that the Union’s reliance upon past practice to support its position in this matter is without merit for several reasons. To begin with, although there is evidence to show that there were periods of time during which the Company did not charge employees with P & S days when they were prevented from reporting to work due to inclement weather, the evidence also shows that this has been a contentious issue through the years, and has been the subject of numerous grievances. Thus, there does not appear to be any fixed and established practice that was accepted or condoned by both parties.
Second, there is likewise insufficient proof that there was ever a meeting of minds between Management and the Union as to how snow days would be handled. Instead, it appears that the administration of the snow day policy in the past has been based on an ad hoc exercise of Managerial discretion, rather than a firm and unequivocal understanding or commitment as to how it would be administered. If an Employer has adopted a procedure over a number of years which is merely an acceptable way of doing things, as opposed to a prescribed and agreed upon way of doing things, it is not prevented from changing that procedure under its right to manage the mine.
Third, and most important, even if the evidence submitted by the Union were sufficiently compelling to support a finding that the past practice claimed by the Union did exist at some point in time, it would be nullified by the terms of Article XXIV(b), which provides that all local agreements and customs in conflict with the Agreement are abolished. Moreover, such a practice would be unenforceable because it would conflict with the clear and unequivocal language of Article VIII(e)(5).
As Arbitrator Carl Stoltenberg explained in Amax Coal Company and UMWA Local 1967, Dist. 11, (1992):
Significantly, the above language is neither ambiguous or unclear. Rather it is an “employer option” to assess to an absent employee a P & S day. It is clear that the “employer may” choose when to exercise this option. Given the clarity of this language, it cannot be modified by a claim of past practice. Simply put, the option of the employer is a guaranteed contractual right and the Company has the right to exercise this option for May 22, 1981.
The Union further contends that it is unreasonable and unfair for the Company to charge P & S days to employees who are unable to access the mine because of hazardous conditions that caused the public roads to be closed. According to the Union, employees have no choice but to observe the road closures because they can be fined and charged with a criminal offense if they do not. Accordingly, since this is a matter over which they have no control, they should not be charged with P & S days.
These arguments were squarely addressed by Arbitrator Bruce B. McIntosh in Consolidation Coal Company and UMWA Local Union 1638, District 6, (1993) which was directly on point with the present dispute. It concerned road closures at the direction of the Governor of West Virginia as a result of a winter blizzard. Employees who were unable to report for work were charged a P & S day and as a result they grieved. Some of the arguments that were advanced by the Union in that case are identical to the arguments advanced by the Union in the present case. Arbitrator McIntosh’s reasons for rejecting the Union’s arguments apply with equal force to the present case. It reads, in pertinent part, as follows:
The evidence of the inaccessibility of the Mine was overwhelming. Not only was it physically impossible to travel the secondary or even primary roads, to attempt to do so was illegal and exposed those who tried to an uninsured adventure…. It is undisputed that the inability of the work force to access the Mine was not due to “sickness, accident or personal business” within the meaning of Article IX, Section (e)(a), although the conditions produced by the blizzard certainly could be considered an “emergency” for which an employee could have requested a P & S day. Although none of the Grievants made such a request, the Company was provided the contractual authority to “pay the employees for that day and charge the employees with a personal or sick leave day” when the “employee (was) absent from work”…. Although the Arbitrator sympathizes with the employees’ desire to exercise their own dominion over the use of days they have grown to conceive as, indeed, personal, the unambiguous language of the Contract neither carves out an exception nor limits the Company’s right to “charge” the day when the employee is absent.
Similar reasoning was applied by Arbitrator Thomas M. Phelan, a former Chief Umpire of two Arbitration Review Boards. He ruled that an employee’s rights under Article IX, Section (e)(5)(a) must be read as co-extensive with an employee’s right to use P & S days. As he explained in Consolidation Coal Company and UMWA Local Union 1545, District 12, (1994):
It appears from the arguments of both parties in this case that they are in agreement with my own frequently expressed opinion in arbitration decisions under the 1988 National Agreement that the Employer’s option under Article IX, Section (e)(5)(a) must be read as co-extensive with the Employee’s own right to use a personal or Sick Leave Day. What that means is that if an Employee has personal (sic) or Sick Leave Days available to cover the absence, then the Employer may, in effect, force the Employee to use the day just as long as it does not exceed the two-day limitation for an absence or more than one consecutive day. The language in the 1988 National Agreement on which that opinion was based has been carried over unchanged into the 1993 National Agreement, and I would therefore give it the same interpretation.
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Since the grievant had a right under the contract to use a Personal or Sick Leave Day to cover his absence from scheduled work on December 31, 1993, the Company had a right under Article IX, Section (e)(5)(a) to charge him with such a day. His grievance claiming that such a charge violated his rights under Article IX, Section (a) of the National Agreement must consequently be denied.
There is no logical basis or compelling reason for departing from those principles in the instant case. Since the contract language is clear and unequivocal, it must be given its intended meaning, which is that if an employee has the right to use a P & S day, the Employer has a corresponding right to force the employee to use the day.
It is important to note that a decision was rendered just last year on a grievance which was filed at another P & M Mine in UMWA District 22 and which was factually similar to the instant grievance. It involved the Company’s unilateral elimination of a practice of routinely granting employee requests for P & S days without pay, even if P & S leave were available to the employee under Article VIII of the Agreement. Arbitrator Jerry B. Sellman, in Pittsburg & Midway Coal Mining Company and UMWA Local Union 1332, District 22, (2001) rejected the Union’s past practice arguments on the following grounds:
…Neither this article [Article VIII] nor any other in the Agreement contains language that requires the Employer to grant an employee’s request for a PSL day without pay prior to the exhaustion of the allowances in Article VIII. If the Employer grants such a request it is purely discretionary and pursuant to its Article IA. Section (d) right to manage the mine. If the employee does not request a PSL day in advance, the Employer has the clear contractual authority to take one of the allowable days set forth in Article VIII. If the employee does request a PSL day, then by operation of the Agreement he is reducing the number of remaining allowable PSL days.
The Grievant does not dispute the Employer’s contractual authority to charge an employee with a PSL day when absent, but opines that since the Employer engaged in the practice of allowing a requested non-paid personal or sick leave day in advance of the absence, the Employer established a practice and custom at the mine which it may not now abolish without the mutual consent of the Union. The facts do not support this position.
The varying practice of allowing some employees to take a PSL day without pay prior to the expiration of the allowed paid PSL days did not rise to the level of a prior practice and custom under the contract. In order for a set of occurrences to rise to the level of a binding practice or custom, there must be an implied agreement from the fact of mutually accepted unvarying responses by the parties to a recurrent set of circumstances or conditions. It cannot be an occurrence or a condition which occasionally transpires, but must be viewed, from the facts present, to be an unvarying established practice on which an actual benefit is conferred upon the employee. If the Employer has created a procedure over a number of years which merely is a way of doing things, it is not prevented from changing that procedure under its rights to manage the mine.
In sum and in short, since the language of Article VIII(e)(5) is clear and unambiguous, it must be applied as written. As coal industry arbitrators have explained in countless cases, this language gives an Employer a virtually absolute and unrestricted right to pay an employee for a P & S day for any day of absence other than one that is related to Union business. This arbitrator sympathizes with the grievants’ concern over the fact that they have lost the beneficial use of one of their P & S days due to circumstances over which they had no control. However, because the contract language does not carve out any exceptions for acts of God or otherwise limit the Company’s right to charge P & S for any day an employee is absent, I have no authority to create an exception. If the framers of the Agreement intended that absences due to snow storms and road closures be included as an exception to the Employer’s right to charge P & S days for absences, they could have easily included it, as they did in the case of Union business. Thus, to read any exceptions into this provision, under the guise of interpretation, other than that which is so plainly expressed would amount to an amendment or modification of the contract that this arbitrator has no authority to make. Accordingly, based upon all of the foregoing the grievance must be denied.
Stanley H. Sergent
May 17, 2002
Mr. Rodney Hatten
Mr. Fred A. Lupo
Grievance No. 21-01
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.
Garry L. Mori
May 17, 2002
Mr. Rodney Hatten
Mr. Fred A. Lupo
Grievance No. 21-01
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Garry L. Mori
 Given that employees at the Kemmerer Mine are entitled to eleven (11) P & S days per year (as compared to five under the NBCWA of 2002), and up to seventeen (17) days in a given year when carrying over days from a previous year (as compared to ten under the NBCWA of 2002), the loss of a day or two of P & S leave could hardly be considered a severe inequity or hardship.