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Title: District 17 and Bluestone Coal Corporation
Date: June 20, 2003
Arbitrator: Lynn Wagner
Citation: 2004 NAC 134

IN THE MATTER OF ARBITRATION

BETWEEN

UNITED MINEWORKERS OF AMERICA
DISTRICT 17, LOCAL UNION NO. 6025

AND

BLUESTONE COAL CORPORATION

Case No. 02-17-04-128
Grievants: Class Action
Nature: Article III, Section (m), Clothing Allowance
Assigned: February 9, 2004
Hearing: March 26, 2004
Decision: April 26, 2004

 

Appearances:
For the Union:

Roger L. Yates   District Representative
Michael Pauley   Local President
James Pyne Mine Committee
For the Employer:
Thomas Lusk  Chief Operating Officer
Thomas Woolwine Management Consultant

GRIEVANCE:

On January 15, 2004, the United Mine Workers of America, District 17, Local 6025 (hereafter “Union”) filed a class grievance on behalf of the approximately 150 bargaining unit employees (hereafter “employees”) of Bluestone Coal Corporation (hereafter “Employer”), who work at its preparation plant and three surface mines, claiming the Employer breached the National Bituminous Coal Wage Agreement of 2002 (hereafter “Agreement”) by not paying each Employee the $230 clothing allowance as required by Article III, Section (m) thereof (hereafter “Section (m)”).

After the parties exhausted all steps of the grievance procedure without reaching an agreement, the Union timely requested arbitration under Article XIII, Section (a)(4) of the Agreement.  The arbitration hearing was held in Bluefield, West Virginia on March 26, 2004.

CONTRACT PROVISIONS INVOLVED:

The following provisions of the Agreement were relied upon by the parties in support of their respective positions:

Article IA, Section (d) – Scope and Coverage

The management of the mine, the direction of the working force and the right to hire and discharge are vested exclusively in management.

Article II, Section (1), Part G – Job Opportunity & Benefit Security (Jobs)

It is further recognized that the mutual objectives of the parties can best be attained by a joint commitment to continuous improvements to…safety.…

Article III – Health and Safety

Section (a):  Every Employee…is entitled to a safe…place to work, and the parties jointly pledge their individual and joint efforts to attain and maintain this objective….

Section (b)(1): …the parties not only accept their several responsibilities, obligations and duties imposed by the Federal Mine Safety and Health Act, but freely resolve to cooperate among each other and with the responsible officials…in determined efforts to achieve greatly improved performance in coal mine…safety.

Section (g):  Reasonable rules and regulations of the Employer not inconsistent with federal and state laws, for the protection of the persons of the Employees…shall be complied with.

Section (m):  Safety equipment and devices, including electric cap lamps, self-rescuers, personal ear plugs, prescription safety glasses, exclusive of eye examination costs, non-prescription safety glasses or goggles, and knee pads shall be furnished by the Employer without charge….  The Employer shall not be required to provide personal wearing apparel such as clothing, shoes, boots where worn as part of normal footwear, hats, belts and gloves.  Instead of supplying such personal wearing apparel, the Employer shall pay each employee an annual protective allowance payable on the first payday following the respective anniversary of this Agreement.  The protective clothing allowance will be…$230 during each of the years 2003 and 2004.

FACTS:

Over the past 20 years or so, the Employer has been a signatory to a series of multi-employer collective bargaining agreements (hereafter “Master Agreements”) between the Union and employer-members of the Bituminous Coal Operators Association (hereafter “BCOA”).  Each of such Master Agreements contained language identical to that contained in Section (m), except for the amount of the annual clothing allowance.

In October 2003, the Employer announced the adoption of a new safety rule (hereafter “safety rule”), to become effective in November 2003, requiring all Employees to wear dark blue uniforms emblazoned with contrasting, brightly-colored, reflective material (hereafter “conforming work clothes”).  The Union agreed the rule was reasonable.

From the time Section (m) was first included in the Master Agreement, it has been the practice of the BCOA employers and independent signatories, including the Employer, to allow employees to provide their own personal wearing apparel, including work clothes, and to pay them the annual clothing allowance.

However, shortly after the Employer announced the safety rule, it furnished the Employees with sets of uniforms meeting the specifications of the safety rule (hereafter “safety uniforms”) and directed them to wear such uniforms to comply with the rule.  In November/December 2003, the Employees began wearing the safety uniforms as directed.

Each set of safety uniforms (consisting of 13 shirts, 13 trousers and 1 jacket) cost the Employer $360.  It was the intention of the Employer to charge each Employee for $230 of that cost by eliminating altogether the $230 annual clothing allowance otherwise payable on January 15, 2004.

The parties disagree on whether the Employer made such intention known to the Union.  The Employer’s COO testified that an unidentified Union representative had been advised that each Employee would be charged for his or her set of safety uniforms by eliminating payment of the $230 annual clothing allowance.  Conversely, a Local Union representative testified that an unidentified superintendent at one of the Employer’s three locations had told him the cost of the sets of safety uniforms would not affect payment of the annual clothing allowance.

Whether the Union’s testimony, the Employer’s testimony or both is credited, the Arbitrator finds the Employer did not adequately advise the Union that it intended to charge the Employees for the sets of safety uniforms it furnished, or that it planned to collect that charge by eliminating the annual $230 clothing allowance.

On January 15, 2004, the Employer failed to pay the annual clothing allowance, as it had always done in the past, explaining that it had deducted the $230 as the Employees’ share of its $360 cost per set of the safety uniforms.  The Union filed this class grievance claiming the Employer breached Section (m).

POSITIONS OF THE PARTIES:

Union Position.  It is the Union’s position that, under Section (m), the Employer may not furnish the Employees with conforming work clothes in lieu of paying the $230 annual clothing allowance, but must allow the Employees to provide such clothing themselves and pay each the $230 annual clothing allowance as an offset against the cost.  Under the Union’s position, since the Employer did not have the option to furnish the Employees with conforming work clothes, it did not have the right to charge the Employees any portion of the cost of the safety uniforms it furnished.

The Union contends its position is supported by clear and unambiguous language in Section (m).  It relies on the words: [t]he Employer shall not be required to provide personal wearing apparel such as clothing” and “[i]nstead of supplying such personal wearing apparel, the Employer shall pay each Employee an annual clothing allowance….”  According to the Union, these words make it indisputably clear that the Employer may not furnish Employees with wearing apparel in lieu of paying all, or any portion, of the annual clothing allowance.

Alternatively, it is the Union’s position that, to the extent the language of Section (m) may not clearly and unambiguously address the issue, it should be interpreted and applied consistent with the lengthy past practice of the BCOA employers, the Employer and other independent signatories to the Master Agreement of allowing employees to acquire their own wearing apparel and paying each the specified amount of the annual clothing allowance.

Employer Position:  It is the Employer’s position the same language of Section (m) relied upon by the Union clearly and unambiguously gives it an option to furnish personal wearing apparel, including conforming work clothes, to the Employees.  It is the Employer’s further position that, when it chooses to furnish apparel and it is, as here, a combination of personal wearing apparel and a safety devices, it may charge each Employee for the wearing apparel component and collect such amount by deducting it from the annual clothing allowance.

As support for its position, the Employer relies upon two cases decided by Arbitrator Thomas P. Phelan involving the allocation under Section (m) of the increased cost of hybrid (of personal wearing apparel and safety devices) necessary to comply with a new safety rule (hereafter “Phelan cases”).  See, UMWA, District 17, Local 1713 and United States Steel, Case No. 50-98-22 (1998); UMWA, District 17, Local 1569 and Consolidation Coal Co., Case No. 84-19-87-1 (1987).  In both cases, Arbitrator Phelan concluded that, when an employer adopts a new safety rule, which requires employees to wear safety enhanced, conforming work clothes (e.g., footwear with metatarsal supports), the extra cost to employees of acquiring such hybrid apparel must be borne by the employer by adding it to the annual clothing allowance.  In that manner, employees continued to bear the cost of the apparel they wore to work before the adoption of the safety rule and the employer bore the increased cost to the Employees of the safety device component.

ISSUES:

1.         Whether the Employer breached Article III, Section (m) of the Agreement by: (1) furnishing the Employees with sets of safety uniforms conforming to the specifications of the safety rule, rather than allowing the Employees to acquire conforming work clothes themselves; (2) charging each Employee $230 of its $360 cost per set of such uniforms; and (3) collecting that amount by eliminating the $230 annual clothing allowance otherwise payable on January 15, 2004; and

2.         If the Employer breached Section (m), the appropriate remedy.

ANALYSIS:

To decide this grievance, the Arbitrator must interpret and apply the language of Section (m) to the facts in this particular case.  In order to resolve such an issue of contract interpretation, the Arbitrator must ascertain how the parties, who negotiated and drafted the language, would have intended it to apply under the facts of this case.  E.g., Michigan Milk Producers Ass’n, 95 LA 1184, 1186-87 (Kanner 1990).

Because the purpose of a written collective bargaining contract is to memorialize the agreements reached by the parties at the bargaining table, the Arbitrator must first attempt to determine such intent from the language of Section (m) itself.  E.g., Metro Transit Authority, 94 LA 349, 352 (Richard 1990).  If that language clearly and unambiguously expresses how such parties would have intended it be applied, the Arbitrator must give effect to such intent.  E.g., Chanute Mfg., 99 LA 20 (Levy 1992).  Only if the language is unclear and ambiguous may the Arbitrator consider parol evidence from which such intention might be reasonable inferred, such as negotiation history and past practice.

The language of Section (m) is only clear and unambiguous when applied to the circumstance where an employer does not furnish employees with “personal wearing apparel” and they must acquire it themselves.  In that situation, Section (m) provides in no uncertain terms that “[i]nstead of supplying such personal wearing apparel, the Employer shall pay each Employee an annual protective clothing allowance…on the first payday in January.

On the other hand, the meaning of Section (m) is unclear and ambiguous as to whether the Employer may furnish personal wearing apparel to the Employees in lieu of paying them the annual clothing allowances.  It does not expressly prohibit the Employer from furnishing wearing apparel.  It only states that, in lieu of furnishing such apparel, the employer shall pay the specified annual clothing allowance.

Because Section (m) does not state, explicitly, that the Employer has an option to furnish Employees with personal wearing apparel, such as work clothes, an ambiguity exists on that issue.  The ambiguity arises primarily from the use of the words “instead” and “shall” in the phrases “[t]he Employer shall not be required to provide personal wearing apparel” and “[i]nstead, the Employer shall pay each employee an annual protective clothing allowance.”  (Emphasis added).

This language could be construed, as the Union contends, to mean the Employees are to furnish their own personal wearing apparel and the Employer is to pay each of them the $230 annual clothing allowance to offset all or part of the cost.  Under such construction, the Employer breached Section (m) by furnishing the sets of safety uniforms, instead of allowing the Employees to acquire the conforming work clothes in lieu of paying the $230 annual clothing allowance. 

Or, the language could be construed, as the Employer contends, to give it the choice of furnishing the Employees with personal wearing apparel in lieu of paying each of them the $230 annual clothing allowance.  However, even under such construction, the Employer breached Section (m), because its option was to furnish all of the Employees’ personal wearing apparel, including “…shoes, boots, hats, belts and gloves”, not just “clothing”, in lieu of paying each Employee all of his or her annual clothing allowance.  There is no language in Section (m) to suggest the Employer may pick and choose what items of personal wearing apparel to furnish and to provide it to the Employees “with charge” and make a concomitant reduction in the annual clothing allowance up to the cost of such items.

The conclusion that the Employer would have breached Section (m) under its own interpretation does not obviate the need for the Arbitrator to determine whether the Union’s or Employer’s advocated construction reflects the intention of the parties who negotiated and agreed to its language, because the appropriate remedy depends on which of the two constructions underlies the Employer’s breach.

The remedy for breach of a collective bargaining agreement is generally to make the grievants whole – that is, to restore them to the position they would have been in, if the breach had not occurred.  Under the Union’s construction, the question is what position the Employees would have been in, if the Employer had not furnished and required them to wear the sets of safety uniforms, but allowed them to acquire the conforming work clothes themselves and to receive the $230 clothing allowance.  Under the Employer’s construction, the question is what position the Employees would have been in, if the Employer had paid for all of their personal wearing apparel, not just the conforming work clothes.

Because the language of Section (m) is unclear and ambiguous as to which of the two competing constructions best reflects the intention of the parties (i.e., the Union and the BCOA employers, the other independent signatories to the Master Agreement and the Employer), the Arbitrator may look to other evidence from which that intent may reasonably be inferred, such as negotiation history and past practice.  E.g., Michigan Milk Producers Ass’n, supra, at 1186-1187.  There is no evidence of negotiation history in the record, but there is clear evidence of past practice.

The Union presented evidence, which the Employer did not contest, that for well over 40 years, the BCOA employers and independent signatories to the Master Agreement have allowed their employees to provide their own personal wearing apparel and paid each the specified annual clothing allowance as an offset to the cost.  Moreover, it is indisputable that during the 34 years the Employer has been a signatory to the Master Agreement, it had also applied Section (m) in that manner.

A reasonable inference may be drawn from such a lengthy and consistent past practice as to how the Union and employers covered by the Master Agreement, including the Employer, understood the meaning of Section (m).  E.g., Webster Tobacco Co.,  5 LA 164, 166 (Brandschain 1986).  Such an inference is bolstered by the fact Union and BCOA-employers have not amended Section (m) to change such past practice. Id.

An interpretation and application of Section (m) to mean the Employees should be allowed to acquire personal wearing apparel themselves and the Employer should pay each the $230 annual clothing allowance as an offset to the cost, is consistent with the overall purpose of Section (m), as found by Arbitrator Phelan in the Phelan cases – to require the Employer to pay 100% of Employees’ safety equipment and devices and to require Employees to bear the cost of their personal wearing apparel to the extent it exceeds the $230 annual clothing allowance. [1]

In contrast, the construction advocated by the Employer would not allocate the cost of safety devices and personal wearing apparel between it and the Employees, but merely to cap its cost of furnishing all such apparel to the Employees at $230 each.

Further, such interpretation and application of Section (m) provides a much simpler method of allocating the cost of the safety component to the Employer and the cost of the wearing apparel component to the Employees.  E.g., Armstrong Rubber Co., 87 LA 146 (Bankston 1986).  The parties, or the Arbitrator if they cannot agree, need to determine only the increase in cost to the Employees of the conforming, hybrid wearing apparel over the cost of the apparel they wore to work before the adoption of the safety rule, and increase the annual clothing allowances by such amount. [2]

For all the foregoing reasons, the Arbitrator concludes that the Employer breached Section (m) by: (1) furnishing the sets of safety uniforms to the Employees for them to comply with the safety rule; and (2) charging each $230 of its $360 cost per set of such uniforms; and (3) collecting such charge by eliminating the $230 annual clothing allowance due on January 15, 2004.

REMEDY

Having concluded the Employer breached Section (m) in the manner described above, the Arbitrator must decide the appropriate remedy.  As discussed above, the appropriate remedy for breach of a collective bargaining agreement is to make the grievants whole by restoring each to the same economic position they would have been in had such breach not occurred.

Had the Employer not breached Section (m) by furnishing the sets of safety uniforms to the Employees rather than allowing them to acquire conforming work clothes themselves, the award, under the reasoning of Arbitrator Phelan in the Phelan cases, with which this Arbitrator agrees, would have required the Employer to pay for the increase between the cost of the clothes the Employees wore to work before the adoption of the safety rule and the cost to the Employees of acquiring conforming work clothes, and add the extra cost to each Employee’s $230 annual clothing allowance.

To achieve the same allocation of cost in this case, where the Employer furnished the conforming work clothes instead of allowing the Employees to acquire them, the average annual cost to the Employees of the clothes they wore to work before adoption of the safety rule must be subtracted from the $230 annual clothing allowance.  In this manner, as in the Phelan cases, the Employees continue to bear the cost of the personal wearing apparel they wore to work before the rule was adopted and the Employer bears the extra cost of the safety component of the conforming work clothes.

For this reason, the appropriate remedy for the Employer’s breach of Section (m) is to require it to determine, after conferring with the Union, the average annual amount the Employees expended for the clothes they ordinarily wore to work before the safety rule was adopted, subtract that amount from the $230 annual clothing allowance and pay each Employees any balance that remains.[3]

INTERIM AWARD

The grievance is hereby GRANTED; and, as the remedy for breach of Section (m), the Employer shall determine, after conferring with the Union, the average annual amount the Employees expended for the clothing they ordinarily wore to work before the safety rule was adopted, subtract that amount from the $230 annual clothing allowance and pay each Employee any remaining balance.

SIGNED:                                                                          Dated this 26th day of April, 2004.
L.E. Wagner, Arbitrator


[1] The Phelan cases are inapposite to the Employer’s position that it may furnish the Employees with conforming work clothes and not pay any of the $230 annual clothing allowance.  Although the employers in those cases had adopted safety rules requiring safety enhanced wearing apparel (e.g., metatarsal supports in footwear), in neither did the employer furnish its employees with such hybrid apparel.  Rather, they allowed the employees to purchase such apparel themselves.  The grievances in those cases involved whether, under Section (m), the increased cost to the employees of the safety enhanced wearing apparel they had to acquire themselves was to be borne by the employees or the employer.  Neither case dealt with the principle issue raised by this grievance – whether an employer may elect to furnish to its employees the hybrid apparel necessary to comply with its new safety rule in lieu of paying them all or a portion of their annual clothing allowance.

[2] The Employer’s reliance on the management rights provisions of Article IA of the Agreement is misplaced, as it is well settled that management rights clauses reserve to an employer only those rights that are not inconsistent with the provisions it agreed to in the collective bargaining agreement.  Its reliance upon the language in Articles II and III – that the Union and Employer have a joint responsibility for safety in the workplace – is similarly misplaced, as it is a well established rule of contract interpretation that the language of provisions, like a Section (m), which specifically address the issue raised by the grievance, only control over provisions that merely relate to its subject matter generally.

[3] The Arbitrator was unable to calculate the amount, if any, of the $230 that would remain and require the Employer to pay that amount, as neither party presented evidence on the average annual amount the Employees expended to purchase their own work clothes before the safety rule was adopted.

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