2006 NAC 107 Drummond Company and Chrisopher Harvey

Title: Drummond Coal Company and United Mineworkers of America
Date: September 18, 2006
Arbitrator: Phyllis Almenoff
Citation: 2006 NAC 107

For the Union (Employee)

Daryl H. Dewberry – UMWA International Vice President, Dist 20
Wendell Rigsby – UMWA District 20 Field Representative

Mike Clements – Manager of Employee & Industrial Relations
Drummond Company, Inc.
Richard Painter – General Manager – Shoal Creek Mine

BEFORE: DR. PHYLLIS ALMENOFF, ARBITRATOR

DECISION AND AWARD

WITNESSES TESTIFYING

The 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.

The 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.

The 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.

Relevant sections of the Wage Agreement and other pertinent documents are as follows:

2002 WAGE AGREEMENT BETWEEN DRUMMOND COMPANY INC. and UNITED MINE WORKERS of AMERICA.

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 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.

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

All decisions 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.

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.

Where 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.

If 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.

(1) 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.

(2) The next available district arbitrator shall immediately be assigned to hear the case.

(3) 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 decision.

All 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.

The 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.

Management intends to apply all work rules and policies in a fair and nondiscriminatory manner.

The 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.

2. Failing to report any hazardous or potentially dangerous situation including condition of equipment.

11. Insubordination; refusal to follow a directive by a supervisor, failure to perform assigned work, failure to follow instruction or disrespective actions toward a supervisor.

This 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.

At 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.

Christopher 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..

The 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.

The 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. “

The 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.

The 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 actions 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:

1. 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.

2. 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 short employment.

3. 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 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 following reasons:

4. The Step 1 Grievance Form characterizes the issue as a “disagreement” and does not refer to insubordination.

6. The Grievant was engaged in “protected activity” as a member of the safety committee.

7. On September 5, 2006, the Grievant filed a Discrimination Complaint with the U.S. Department of Labor – Mine Safety and Health Administration.

8. 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.

9. The Company does not have just cause to terminate the employment of the Grievant.

10. There is precedent for an arbitrator to impose a lesser penalty than discharge. (Union Exhibits # 2 and #3.

The 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.

ARTICLE XXIV of the Wage Agreement covers the procedure for discharging covered employees, In pertinent part it states the following:

The Personal Conduct rule which is purported to have been violated is Rule # 11 and the consequences are set forth below.

11. Insubordination; refusal to follow a directive by a supervisor, failure to perform assigned work, failure to follow instruction or disrespective actions toward a supervisor.

“State 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 the employer.”[1]

“Robert’s 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.”[2]

The “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.

This 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.

The 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)

The 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.

The 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 pit.

Health 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.

With regard to the discrimination complaint filed by the Grievant, the Department of Labor will make its own determination.

The 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.

The 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.

I find the Company’s testimony to be more persuasive than the Union’s testimony.

Discharge 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.[3]

Therefore, it is appropriate for an arbitrator to require clear and convincing evidence. As explained by Arbitrator Richman:

The 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[4]

1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

Yes. 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.”

Yes. Insubordination cannot be tolerated in the workplace. A supervisor must be able to direct his workforce and expect that assigned work will be performed.

Yes. Various employees and managers were interviewed about the events that had transpired.

Yes. 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.

Yes, 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.

The “just cause” standard implies progressive discipline. The three prior disciplinary actions taken by the Company including a Final Warning fulfill this standard.

The “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:

…whether a reasonable person taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.) [6]

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 Wage Agreement has not been violated. The grievance is denied in all respects.

Supervisors 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.

However, 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.

The Grievant shall be reinstated on the 181^st (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.

[1] Black’s Law Dictionary of Industrial Relations, Abridged 5^th Edition, West Publishing Company, 1983, p.408
[2]Roberts Dictionary of Industrial Relations, 4^th Edition, BNA Inc. Washington D.C. p. 349
[3] Elkouri and Elkouri, How Arbitration Works 905 (5^th Ed. 1987).
[4] General Telephone Company of California, 73 LA 531, 533 (Richman, 1979
[5] Enterprise Wire Co., 46 LA 359, 363-4 (1966)
[6] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961) See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947)

IN THE MATTER OF AN ARBITRATION BETWEEN THE UNITED MINE WORKERS OF AMERICA-DISTRICT 20 AND DRUMMOND COMPANY, INC.

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 181^st (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 ______________________________
Phyllis Almenoff, Arbitrator

I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.

Chris Harvey	Grievant, UMWA Local Union 1948 Member
Bobby Halbrook	Chairman, UMWA Local Union 1948 Mine Committee
Ray Tidwell	UMWA Local Union 1948 Vice President

Randall Green	UMWA Local Union 1948 - President
Randall Erwin	UMWA Local Union 1948 Mine Commiittee
Daniel Kelly	UMWA Local Union 1948 Mine Committee
Randall Wideman	UMWA Local Union 1948 Mine Committee
Johnny Butler	UMWA Local Union 1948 Member
Johnny Barger	UMWA Local Union 1948 Member
Wayne Cox	UMWA Local Union 1948 Member
Greg Terrell	UMWA Local Union 1948 Member
Joe Weldon	UMWA Local Union 1948 Safety Committee

Norwood Brown	Owl Shift Mine Foreman – Drummond Company, Inc.
Kurt Poulson	Maintenance Foreman
John Pavlovich	Belt Superintendent
Shawn Pavlovich	Belt Foreman
Richard Painter	General Manager – Shoal Creek Mine

David Gass	Maintenance Foreman
Bob Duvall	Mine Foreman Owl Shift