Coal Company and United Mineworkers of America
In the Matter of the Arbitration
MINE WORKERS OF AMERICA
Case # 02-20-06-119
Issue: Discharge of Christopher Harvey
the Union (Employee)
H. Dewberry – UMWA International Vice President, Dist 20
the Company (Employer)
Manager of Employee & Industrial Relations
DR. PHYLLIS ALMENOFF, ARBITRATOR
Called by the Union
Called by the Employer Representative
grievance was submitted to Phyllis Almenoff, Panel Arbitrator pursuant to the
terms set forth in ARTICLE XXIV – Section d (Immediate Arbitration) of the
2002 Wage Agreement between Drummond Company, Inc. and United Mine Workers of
America (Joint Exhibit 1) for a final and binding resolution of the issue.
parties agree that the Grievance was timely filed, and that all steps in the
Discharge Procedure have been
exhausted without a satisfactory resolution. The Arbitrator has jurisdiction to
decide the Grievance on the merits.
hearing took place on October 11, 2006 at the Holiday Inn – Airport in
Birmingham, Alabama. Both parties were afforded full opportunity to present
testimony, offer evidence and arguments in support of their respective positions
and to cross-examine witnesses. The parties agreed to send written closing
arguments by Express Mail to the Arbitrator due to the Arbitrator’s flight
arrangements and her illness. The Company’s closing arguments/exhibits were
received on September 13, 2006 and the Union’s closing arguments/exhibits were
received on September 15, 2006 at which time the record was closed.
agreed to by all parties, the Award was faxed on September 18, 2006.
OF THE ISSUE
parties stipulated to the following issue:
the Grievant’s suspension with intent to discharge for just cause?
not, what shall be the remedy?
sections of the Wage Agreement and other pertinent documents are as follows:
WAGE AGREEMENT BETWEEN DRUMMOND COMPANY INC. and UNITED MINE WORKERS of AMERICA.
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 at operations covered by this Agreement the United Mine
Workers of America is recognized herein as the exclusive bargaining agency
representing the Employees of the parties of the first part.
It is further agreed that as a condition of employment all Employees at
operations covered by this Agreement 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. It
is the intent and purpose of the parties hereto that this Agreement will promote
and improve industrial and economic relationships in the bituminous coal mines
covered by this Agreement. Management
will not abridge the rights of the Employees as set forth in this Agreement.
(d) Management of the Mines
management of the mine, the direction of the working force and the right to hire
and discharge are vested exclusively in the Employer.
of the Arbitration Review Board rendered prior to the expiration of the National
Bituminous Coal Wage Agreement of 1978 shall continue to have precedential
effect under this Agreement to the extent that the basis for such decisions have
not been modified by subsequent changes in this Agreement.
(a) Just Cause Required
Employee covered by this Agreement may be disciplined or discharged except for
just cause. The burden shall be on
the Employer to establish grounds for discharge in all proceedings under this
management concludes that the conduct of an Employee justifies discharge, the
Employee shall be suspended with intent to discharge and shall be given written
notice stating the reason, with a copy to be furnished to the Mine Committee.
After 24 hours, but within 48 hours, the Employee shall be afforded the
right to meet with the mine superintendent or manager.
At such meeting, a member or members of the Mine Committee shall be
present and, if requested by the Employee or the Mine Committee, a
representative of the district shall also be present.
When the district representative requests, the forty-eight hour time
limit will be extended by an additional 48 hours.
The Employer shall be
entitled to have an equal number of representatives at the meeting.
the Employer informs the Employee at the meeting between the Employee and the
mine superintendent or manager that he still intends to discharge the Employee
(or if no meeting was requested), the Employee remains suspended with intent to
discharge for a period of time necessary to permit him to file a grievance and
have it arbitrated. If the Employee
does not file a grievance within five days of the notice of suspension with
intent to discharge, the discharge shall become effective immediately.
(d) Immediate Arbitration
If the District believes that just cause for discharge does not exist, it
shall arrange with the Employer for immediate arbitration of the dispute,
bypassing steps one through three of the grievance procedure.
The next available district arbitrator shall immediately be assigned to
hear the case.
The appropriate district administrator shall hear the case within five
days. At the conclusion of the
hearing, the district arbitrator shall at that time announce his decision which
shall be binding on all parties. Following
the hearing, the arbitrator shall forthwith reduce his decision to writing
within 10 days. If the arbitrator
determines that the Employer has failed to establish just cause for the
Employee’s discharge, the Employee shall be immediately reinstated to his job.
If the arbitrator determines that there was just cause for the discharge,
the discharge shall become effective upon the date of the arbitrator’s
employees are expected to work in a safe, efficient, and responsible manner.
The orderly operation of the mine requires a conscientious effort on
everyone’s part. Accordingly, it
is vital that everyone be aware of the basic standards of personal conduct
expected of them.
rules set forth below are established to provide employee guidance to better
understand the principles of personal conduct.
While these rules cover the most common problems likely to occur, they
are not intended to be all inclusive.
intends to apply all work rules and policies in a fair and nondiscriminatory
following actions are serious violations of company rules and shall constitute a
basis for appropriate disciplinary action up to and including suspension with
intent to discharge. The
application of discipline will depend on the severity of the violation and other
considerations relevant to the particular infraction.
Failing to report any hazardous or potentially dangerous situation
including condition of equipment.
Insubordination; refusal to follow a directive by a
supervisor, failure to perform
failure to follow instruction or disrespective actions toward a supervisor.
case emanates from a grievance filed at the Shoal Creek Mine of Drummond
Company, Inc. herein referred to as the Employer.
The Shoal Creek Mine is a very large underground bituminous coal mine and
preparation facility/complex which is owned and operated by Drummond Company,
Inc. The mining complex is located in Jefferson and Tuscaloosa Counties near
Adger, Alabama. The mine currently
has approximately seven hundred ninety-three (793) employees, six hundred
sixty-three (663) of whom are hourly classified employees.
all pertinent times herein the wages, hours, benefits and hourly production and
maintenance employees were covered by the 2002 Wage Agreement between Drummond
Company Inc. and United Mine Workers of America. For purposes of collective
bargaining, those employees are represented by Local Union 1948, District 20 of
the United Mine Workers of America.
Harvey, hereinafter referred to as the Grievant, has worked at the Shoal Creek
Mine since June 9, 2004. At the
time in question he was classified in the job title of Belt Repairman in Pay
Grade 4 as provided for in Appendix A and B – Part I, Classification 4E
General Inside Repairman and Welder..
events leading to the suspension with intent to discharge occurred on Sunday,
September 5, 2006. S.P., the Belt Supervisor and nine (9) classified employees
including the Grievant entered the underground portion of the Mine via the
elevator. When the men reached the
bottom, they were given work assignments and directed to take specific tractors
to their assignments. The tractors
were parked in the vicinity. After
receiving his assignment, the Grievant did not report to his work location and
instead approached S.P., his supervisor, to tell him that tractor number 2745
had a safety issue and could not be used. His
supervisor indicated that the tractor was not assigned for anyone’s use and
assured him that he would take the tractor to the motor pit to get it repaired.
The Grievant continued to argue with his supervisor and spoke in a loud
voice in the presence of other classified employees.
B.W., a belt repairman advised the Grievant to get on the tractor to
which they were both assigned before he got into trouble.
The Grievant stated that he was the third alternate safety man and had a
duty to deal with safety issues. His
supervisor repeated that there was no safety issue with the tractor to which he
was assigned and directed him to go and do his job. The supervisor repeated that
he would personally bring tractor 2745 to the motor pit.
The Grievant said that he would bring the tractor to the motor pit and
became loud and abusive. The Grievant started to head to the motor pit.
At that point, S.P. directed the Grievant to sit down on a bench seat and
S.P called N.B., the Shift Foreman, and stated that he did not want the Grievant
to work for him and asked that N.B. find other work for the Grievant. The Shift Foreman agreed to assign the Grievant other work
and directed him to go back into the mine and wait for him at the bottom of the
elevator shaft. While waiting for the Shift Foreman, the Grievant called Foreman
B.D. on the mine phone and reported that an electrician was operating a Hummer
that was not safe since the fire suppression system needed to be secured better.
B.D.told the Grievant that it was the electrician’s job to do a
pre-inspection of the Hummer and if he found it to be in need of repairs the
electrician would bring it to the motor pit.
After conferring with other supervisors and managers, it was determined
to suspend the Grievant with intent to discharge.
Grievant had received previous discipline for insubordination.
On January 11, 2005 he received a Disciplinary Written Notice for
refusing to work his assigned shift. On
January 26, 2005 he received a Disciplinary Suspension Notice and was suspended
for two days because he did not go to the mining section to which he was
assigned with his mining crew as directed. On October 11 he received a Final
Written Warning when he took it upon himself to go to the warehouse to attempt
to get parts and then took an overtime lunch.
In the Final Written Warning, he was warned that “Any continued
behavior such as you have displayed will result in more severe disciplinary
action being taken up to and including “Suspension with Intent to Discharge.
Grievant received a Written Notice of Suspension with Intent to Discharge dated
September 3 but delivered by mutual consent on September 5, 2006(Joint Exhibit
2) for violating Personal Conduct Rule #11 – Insubordination.
(Joint Exhibit 3) after which the Grievant and the Mine Committee met
with the Employer. The matter was not resolved. A Step 1 grievance was filed.
(Union Exhibit 4) The Grievant
requested immediate arbitration.
of the Employer
Company contends that it suspended the grievant with intent to discharge for
violating Personal Conduct Rule #11: Insubordination;
refusal to follow a directive by a supervisor, failure to perform assigned work,
failure to follow instruction or disrespective
toward a supervisor.
(Joint Exhibit 3) The employer maintains that it has met its contractual burden
of proof for just cause and that the Grievant’s discharge should be upheld. In
support of its position, the Company offered the following arguments:
Christopher Harvey has been an employee of Shoal Creek Mine since June 9,
2004, a period of two years and two months.
During this period of time the Grievant has been disciplined for
insubordination on three occasions. He
received a Disciplinary Written Notice on January 11, 2005 for not working a
shift for which he was scheduled. On
January 26, 2005 T he Grievant was issued a two (2) day Disciplinary Suspension
Notice for insubordination. On
October 11, 2005 the Grievant was issued a Final Written Warning for actions
including insubordination. None of these disciplinary actions was grieved.
The Grievant is a problem employee.
He has a problem with authority and supervision.
He is argumentative, does not carry out assignments and directives.
He has been insubordinate on several occasions during his relatively
On September 3, 2006, the Grievant was given a work assignment and
instructed to take a specific tractor with another miner to his work area.
He reported a safety concern, about a tractor that was not assigned to be
used, to his supervisor who assured him that he would take the tractor to the
motor pit. He was told to go to his work assignment but refused this repeated
direct order. Instead, he indicated that he would bring the tractor to the motor
pit. He continued to argue and
ignore his supervisor’s instructions in the presence of other employees who
warned him to comply before he got into trouble.
The Grievant should be discharged for cause.
of the Union
Union contends that the Employer does not have just cause to discharge the
Grievant who should be reinstated to his position and made whole for the
termination of the Grievant was not justified.
The Company has not met its burden of proof.
There was conflicting testimony.
The Step 1 Grievance Form characterizes the issue as a “disagreement”
and does not refer to insubordination.
He has been denied “due process.”
The Grievant was engaged in “protected activity” as a member of the
On September 5, 2006, the Grievant filed a Discrimination Complaint with
the U.S. Department of Labor – Mine Safety and Health Administration.
This is a really a family feud. S.P., the Belt Foreman is the immediate
supervisor of the Grievant and is his stepbrother; J.P., the Belt Superintendent
is the stepfather of the Grievant.
The Company does not have just cause to terminate the employment of the
There is precedent for an arbitrator to impose a lesser penalty than
discharge. (Union Exhibits # 2 and #3.
OF THE EVIDENCE
issue to be determined in this arbitration is whether the Company has just cause
to Suspend the Grievant with Intent to Discharge the Grievant under the terms of
the 2002 Wage Agreement, based on all of the facts and testimony in evidence.
XXIV of the Wage Agreement covers the procedure for discharging covered
employees, In pertinent part it states the following:
No Employee covered by this
Agreement may be disciplined or discharged except for just cause.
The burden shall be on the Employer to establish grounds for discharge in
all proceedings under this Agreement.
Personal Conduct rule which is purported to have been violated is Rule # 11 and
the consequences are set forth below.
actions are serious violations of company rules and shall constitute a basis for
appropriate disciplinary action up to and including suspension with intent to
discharge. The application of
discipline will depend on the severity of the violation and other considerations
relevant to the particular infraction.
Insubordination; refusal to follow a directive by a supervisor, failure
to perform assigned work,
failure to follow instruction or disrespective actions toward a supervisor.
Black’s Law dictionary defines
insubordination as follows:
of being insubordinate; disobedience to constituted authority.
Refusal to obey some order which a superior officer is entitled to give
and have obeyed. Term imports a
willful or intentional disregard of the lawful and reasonable instructions of
Dictionary of Industrial Relations” defines insubordination as follows:
A worker’s refusal or failure to obey a management directive or to comply with an established work procedure. Under certain circumstances, use of objectionable language or abusive behavior toward supervisors may be deemed to be insubordination because it reveals disrespect of management authority. Insubordination is a cardinal industrial offense since it violates management’s traditional right and authority to direct the work force.” 
“obey now grieve later“ rule generally governs arbitral decisions in cases
involving insubordination. The
leading exception to this rule is refusing to follow an order that would
endanger the employee’s health or safety or that of other workers.
It is well established in arbitration that management has the fundamental right unilaterally to establish reasonable plant rules not inconsistent with law or the collective agreement. The Company has the right to make and enforce reasonable rules and regulations as long as these rules and regulations do not conflict with a Collective Bargaining Agreement.
arbitrator has reviewed all of the testimony and evidence presented at the
hearing as well as the closing arguments and exhibits that were sent to her.
She has also reviewed the hundreds of precedent setting cases that were
presented by both parties to support their respective arguments.
Grievant is charged with insubordination for refusing to carry out the
directives and instructions of his supervisor when he failed to proceed to the
area he was assigned to perform job
duties. The Grievant has a history of insubordination for which he has received
discipline including prior warnings and counseling, a two day suspension, and a
Written Final Warning. The
testimony of the Company’s witnesses were credible and supported these
allegations and events that led to the issuance of the Written Notice of
Suspension with Intent to Discharge for violating the Personal Conduct Rule #11
– insubordination. (Joint
Exhibits #2 and #3)
Union argued that this is really a family issue and not a case of
insubordination. I disagree. There
was no corroborating testimony of this assertion.
Under cross-examination, the Grievant reluctantly testified that he used
J.P.’s name as a reference on his application for employment at Shoal Creek
Mine. Thus, J.P., his stepfather who is the belt superintendent actually
assisted him in obtaining employment at the mine.
Union asserted that the Grievant was engaged in “protected activity” when he
insisted upon transporting a tractor that he determined was unsafe to the motor
pit and would not report to his work area as he was directed to do. Belt repairman B.W. with whom he was supposed to work urged
him to stop arguing with his supervisor before he got into trouble.
The Grievant continued to defy S.P., his supervisor even though he was
assured by him that he would personally take care of the matter and bring the
“defective tractor” to the motor pit. In
an attempt to provide other work for him, the Grievant was assigned to N.B., the
Shift Foreman who instructed him to wait at the bottom of the elevator. The
Grievant called B.D., the mine foreman to say that an electrician was operating
a Hummer that was not safe because the fire suppression system needed to be
better secured. B.D. informed him that it was the responsibility of the
electrician to perform a pre-operational inspection of the Hummer and if repairs
were required, it was the electrician’s responsibility to take it to the motor
and safety are important issues in the workplace and critical issues in the coal
mines. I have reviewed the documents submitted pertaining to safety including the
Wage Agreement (Joint Exhibit #1), the Personal Code - #4 (Joint Exhibit 3), the
Federal Mine Safety and Health Act of 1977 (Union Exhibit Public Law
91-173, as amended by Public Law 95-15495-164 (Union Exhibit #1) and
Procedural Rules of the Federal Mine Safety and Health Review Commission. (Union
#6) It appears that employees have
an obligation to “report hazardous or potentially dangerous situation
including conditions of equipment.” The
Grievant reported safety concerns to his supervisor, as required.
He was not authorized to take matters into his own hands or to refuse to
carry out his work assignment. The Grievant is actually the third alternate
safety committee man. Management was unaware of this designation. In any event, an alternate safety committee man would be
called to assist in inspections when others are otherwise occupied.
regard to the discrimination complaint filed by the Grievant, the Department of
Labor will make its own determination.
Union made the argument that the Step 1 Grievance Form referred to the issue as
a “disagreement.” (Union Exhibit 4) I
find that the Grievant had clear and unambiguous notice that the Written Notice
of Suspension with Intent to Discharge for violation of Personal Conduct Rule
(11) – Insubordination. (Joint Exhibits 2 & 3) He attended and was
represented by his Union at the 24/48 meeting at which the notice of suspension
for insubordination was discussed. When the company made it clear that it wanted
the Grievant discharged, immediate arbitration was requested. The
evidence indicates that the Grievant was not deprived of any procedural rights
or due process.
Grievant testified that he did not grieve previous disciplinary actions because
he thought that previous letters of discipline had been removed from his file.
R.T., Local Union Vice President testified that he was under the
impression that the disciplinary letters had been removed from the Grievant’s
file. Company witnesses disputed the removal of disciplinary letters from his
file. The Grievant did not recall
that he had been suspended previously and then indicated that he was not
supposed to work on those days anyway. In
his testimony the Grievant stated that he said, “I will do any job that I am
directed to do” but this statement does not reflect his actions. The Grievant
showed no remorse for any of his behavior.
find the Company’s testimony to be more persuasive than the Union’s
is recognized to be the extreme industrial penalty since the employee’s job,
seniority and other contractual benefits, and reputation are at stake.
Because of the seriousness of this penalty, the burden generally is held
to be on the employer to prove guilt of wrongdoing, and probably always so where
the agreement requires “just cause” for discharge.
it is appropriate for an arbitrator to require clear and convincing evidence.
As explained by Arbitrator Richman:
imposition of a lesser burden than clear and convincing proof fails to give
consideration to the harsh effect of summary discharge upon the employee in
terms of future employment
just cause standard has been defined and incorporates seven tests.
Did the company give the employee forewarning or foreknowledge of the
possible or probable disciplinary consequences of the employee’s conduct?
Violations of Personal Conduct Rules are serious and constitute a basis for
appropriate disciplinary action up to and including suspension with intent to
discharge. The Grievant violated
Rule #11- “Insubordination, refusal to follow a directive by a supervisor,
failure to perform assigned work, failure to follow instruction or disrespective
action toward a supervisor.”
Insubordination cannot be tolerated in the workplace.
A supervisor must be able to direct his workforce and expect that
assigned work will be performed.
Various employees and managers were interviewed about the events that had
When management concludes that an employee’s conduct justifies
discharge the procedure outlined in the Wage Agreement requires that the
employee be given a written notice including the reason, with a copy to the Mine
Committee. The employee is afforded
an opportunity to meet with the mine superintendent or manager.
The Grievant and his representative as well as members of the Mine
Committee attended the meeting.
was no testimony to the contrary.
the Grievant was insubordinate in the instant case and on three previous
occasions. He has previously
received written warnings, a suspension of two days as well as a Final Written
Warning for prior instances of insubordination.
“just cause” standard implies progressive discipline.
The three prior disciplinary actions taken by the Company including a
Final Warning fulfill this standard.
“just cause” standard is a broad and elastic concept, involving a balance of
interests and notions of fundamental fairness.
The applicable standard is one of reasonableness:
a reasonable person taking into account all relevant circumstances would find
sufficient justification in the conduct of the employee to warrant discharge (or discipline.) 
on the evidence and testimony, the Company has met its contractual burden of
proof showing just cause to suspend the Grievant with intent to discharge. The
Wage Agreement has not been violated. The
grievance is denied in all respects.
are representatives of the Company and they have the authority and
responsibility to provide direction to the work force.
A company cannot tolerate a workplace in which workers do not follow
instructions. Insubordination is
recognized as a cardinal industrial offense since it violates management’s
traditional right and authority to direct the work place.
discharge is too severe a penalty for the Grievant at this time.
Instead a suspension of six month (180 days) is imposed as justified and
appropriate with the clear warning that should the Grievant continue to be
insubordinate or violate other Personal Conduct Rules he will be terminated.
Grievant shall be reinstated on the 181st (calendar) day following
the day on which he was relieved from duty with intent to discharge. The Grievant is not entitled to back-pay compensation since
he will not have lost any earnings.
Award issued on September 18, 2006 is reaffirmed.
 Black’s Law Dictionary
of Industrial Relations, Abridged
5th Edition, West Publishing Company, 1983, p.408
IN THE MATTER OF AN ARBITRATION BETWEEN THE UNITED MINE WORKERS OF
AMERICA-DISTRICT 20 AND DRUMMOND COMPANY, INC.
ON THE GRIEVANCE:
Based on the
evidence and testimony, the Company has met its contractual burden of proof
showing just cause to suspend the Grievant with intent to discharge. The
grievance is denied. However, the penalty of discharge is too severe a penalty.
Instead a suspension of six month (180 days) is imposed as justified and
appropriate. The Grievant shall be
reinstated on the 181st (calendar) day following the day on which he
was relieved from duty with intent to discharge.
The Grievant is not entitled to back-pay compensation since he will not
have lost any earnings.
DATED: September 18, 2006
of New York
I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028