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UMW DIST. NO. 2 v. ROCHESTER & PITTSBURGH COAL CO.

July 20, 1976

UNITED MINE WORKERS OF AMERICA DISTRICT NO. 2, and United Mine Workers of America Local No. 1412, Plaintiffs,
v.
ROCHESTER & PITTSBURGH COAL COMPANY, Defendant



The opinion of the court was delivered by: WEBER

 FINDINGS

 This is a suit brought under § 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a). Plaintiffs are labor organizations representing employees of defendant employed in its mines. Defendant is a mining company which employs about 700 members of plaintiff Unions and about 100 supervisory personnel who are not members of the Union. The parties are bound by collective bargaining agreements known as the National Bituminous Coal Wage Agreement of 1971 and a successor Agreement of 1974.

 The Agreements provide that all work in and around the mines related to the production of coal, its processing and transportation, and repair and maintenance work is the exclusive work and jurisdiction of the union members. This provision is specifically detailed in both agreements in substantially the same terms, that of the 1974 Agreement reading:

 
Art. II, Section C.
 
Section (c) Supervisors Shall not Perform Classified Work.
 
Supervisory employees shall perform no classified work covered by this Agreement except if such work is necessary for the purpose of training or instructing classified Employees. When a dispute arises under this section, it shall be adjudicated through the grievances machinery and in such proceedings the following rule will apply: the burden is on the Employer to prove that classified work has not been performed by supervisory personnel.

 The Agreements also contain a grievance-arbitration procedure, Art. XXIII, Sec. (c) of the 1974 Agreement, providing for stages of grievance consideration and terminating in final and binding arbitration.

 The defendant company does not deny that a supervisor performed the classified work in each instance. It advances the fact that eleven of the grievances involved work done by supervisors during illegal work stoppages, and one involved work done during a memorial period called by the Union. In these twelve cases the classified work done by the supervisors was scheduled idle day work, non-production, but necessary maintenance work which was required to be done before production could be resumed. The question of whether such work could be done by supervisors under these circumstances was never presented to or ruled upon by the Arbitrator.

 Of the supervisory personnel of defendant's mines forty (40%) percent of Jane Mine have less than three years supervisory experience, and fifty (50%) percent of those at Emily Mine have less than two years supervisory experience. Almost all of the supervisory personnel came up through the ranks, and were hourly paid employees and union members before the promotion. They customarily carry their own tools with them for the possibility of being called upon to do emergency or instructional work, which is permitted supervisors under the contract.

 In the trial of this case the court was presented with evidence showing the factual situation out of which each grievance arose. With respect to those arising at times other than the twelve mentioned where no union members were working in the mine, our conclusion is that in a large measure they represent short-term, temporary, and minor breaches of the clause in question. For example, in some instances the supervisor had been asked to perform the work by a classified employee, or worked alongside a classified employee, or undertook a temporary repair prior to the arrival of the mechanic. The periods of time involved were extremely short in all cases and do not prove a consistent policy of supervisory personnel to replace classified union personnel for extended periods of time. The Arbitrator at one point described these infractions as "insubstantial". (Plaintiffs' Exhibit 16, pp. 9-11).

 The evidence also revealed some instances of conduct approaching a type of entrapment, where the classified union employee was being assisted by the supervisor without making a complaint at the time, but later filing a grievance.

 The evidence also shows that in all cases defendant mining company never refused to process a grievance, settled most of them by agreement at an early stage, ...


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