was the record of the proceedings in the Schuylkill County Action. Testimony in that case indicated that the Amended Supply Agreement provided for the "processing, removing, loading and transporting off-site . . . [of] the anthracite culm," which was to be used as fuel. (Docket Entry 41, Ex. "H" at 4, 5 and 9.)
In essence, Umpire Summers held that the material in question should be treated as coal because it was being used as a fuel.
Clearly, Umpire Summers' treatment of the issue reflects an arguable construction or application of the contract. See News America Publishing, 918 F.2d at 24.
Jeddo-Highiand maintains, however, that Umpire Summers' decision conflicts with case law from this Circuit, citing Huge v. Ondesko, 415 F. Supp. 816 (W.D.Pa. 1976). See also Galgay v. Gil-Pre Corp., 864 F.2d 1018 (3rd Cir. 1988); Thomas v. Blue Coal Corp., 355 F. Supp. 510 (M.D.Pa. 1973). Those cases are patently distinguishable. They did not deal with the question of whether handling of culm falls within the work jurisdiction provisions of a collective bargaining agreement. Instead, they address the question of whether pension royalties based upon coal tonnage were payable with respect to the handling of culm. The dispositive issue in each of those cases was whether the activities of the defendant sought to be charged with royalty responsibility constituted the production of coal for use or for sale. Thus, for example, in Thomas, the Honorable Malcolm Muir of this Court ruled that coal was produced for use or for sale when culm was first processed through a breaker and made marketable or useable as a fuel. 355 F. Supp. at 512. Accord, Galgay, 864 F.2d at 1021. Thomas thus acknowledges that culm contains combustible coal. Indeed, in Huge, the court relied on the work jurisdiction provisions of the bituminous coal wage agreement in holding that the defendant should be held liable for pension royalties on coal recoverable from a culm bank. 415 F. Supp. at 820. Moreover, none of the cases cited above involved review of a labor arbitration award. Clearly, these cases do not preclude a determination that the culm in question falls within the work jurisdiction provisions of the 1990 AWA.
Jeddo-Highland contends that even if the work activity in question involved coal, it did not constitute the "production, preparation, processing, . . . cleaning, [or] transportation of coal." (Article 41, Ex. "A" at 1.) In this regard, Jeddo-Highland referred to Mr. Montafia's report, in which he asserted that "the culm is being transported to and eventually fed into a co-generation facility without any production, processing, cleaning or preparation, because the Wheelabrator facility does not itself extract coal from the refuse material, nor does it require that coal first be extracted from it." (Docket Entry 41, Ex. "F" at 1.)
While there may be no "extraction" of coal from the culm itself, the record before Umpire Summers indicated that the culm in question was sized and crushed, the type of processing of coal performed in a breaker. (Docket Entry 41, Ex. "G" at 19-20.) Testimony was also presented that this type of work was customarily performed by UMW members. (Id. at 14, 19-20.) Thus, the loading and transportation of culm could certainly be viewed as "work customarily related to" the "production, preparation, processing and cleaning of coal from . . . refuse banks."
In this regard, Umpire Summers' decision in this case is consistent with his ruling in Grievance No. 8298, concerning activities on "coal lands" where a co-generation facility had been constructed. In that matter, Umpire Summers held that the loading and hauling of culm for use in a co-generation facility was within the work jurisdiction provisions of the 1990 AWA. (See Exhibit 3F to Umpire Summers deposition.) The fact that the co-generation facility in this case is not located on the same parcel of property as is the culm bank should not alter the result.
Umpire Summers also concluded that the hauling of culm fell within the 1990 AWA "because Article 2 includes in the jurisdiction of the Agreement, the 'transportation of coal (except transportation of prepared coal)'." (Docket Entry 27, Ex. "D" at 5.)
Umpire Summers explained that "if coal, which had been dug and stacked at the mine site were 'dedicated' to a non-signatory, the loading and hauling would have to be done by Miners covered by the 'Wage Agreement.'" (Docket Entry 27, Ex. "D" at 5.) In this regard, Umpire Summers had ruled in Grievance No. 8261 that the hauling of "run-of-the-mine" coal is union work. (Docket Entry 41, Ex. "G" at 70-71.) Because the culm in question was being hauled for its fuel content, it could be viewed as analytically indistinguishable from "run-of-the-mine" coal under the 1990 AWA.
It is thus evident that Umpire Summers, in concluding that the work activity in question fell within the 1990 AWA, "arguably construed or applied the contract." News America Publishing, 918 F.2d at 24. Clearly, it cannot be said that there is "absolutely no support at all in the record justifying the arbitrator's determinations." Id.
2. Morea's Relationship to Jeddo-Highland
Jeddo-Highland maintains that the 1990 AWA is nonetheless inapplicable here because neither Morea, the owner of the culm, nor Wheelabrator, to whom the culm had been "dedicated," is a signatory to that agreement. Umpire Summers concluded that the work activity in question was indeed subject to the 1990 AWA in light of Section (g) of Article 2 of that agreement, which, in pertinent part, provides:
The Operators agree that this Agreement covers the operation of all of the coal lands owned. . by them, or any of them, or by any subsidiary or affiliate at the date of this Agreement or acquired during its term, which may hereafter (during the term of this Agreement) be put into production. [Docket Entry 41, Ex. "A" at 3; emphasis added.]