Appendix — United Mine Workers of America v. Island Creek Coal Co

Supreme Court brief1994

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, vs.

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OFFICE OF THE CLERK

NO.

In The

Supreme Court of The United States

October Term, 1994

UNITED MINE WORKERS OF AMERICA

DISTRICT 28,

Petitioner,

ISLAND CREEK COAL COMPANY

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

APPENDIX

LEGAL ADVANTAGE - Advocates in Appellate Services

1108 East Main Street * Richmond, VA 23219

(804) 780-0800

TABLE OF CONTENTS

PAGE

SELECTED PORTIONS OF THE

COLLECTIVE BARGAINING AGREEMENT 1

ARBITRATION AWARD DATED 11/11/92

ARBITRATOR BERNARD CANTOR 5

MEMORANDUM OPINION, C.A. No.

90-0052-A; LOCAL UNION NO. 2232,

etc., v. ISLAND CREEK COAL CO.,

etc. 82

MEMORANDUM OPINION, C.A. No.

92-0174-A; ISLAND CREEK COAL

COMPANY v. LOCAL UNION 2232, UNITED

MINE WORKERS OF AMERICA, et al. 108

OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH

CIRCUIT, ISLAND CREEK COAL

COMPANY v. DISTRICT 28,

UNITED MINE WORKERS OF AMERICA,

No. 93-2305 130

The controlling agreement is the

National Bituminous Coal Wage Agreement

Between Island Creek Corporation and

International Union, United Mine Workers

of America (hereinafter "BCOA"). Of

particular importance to the dispute

currently before this Court are the

following provisions:

a. Article IA--SCOPE AND COVERAGE

Section (c) Supervisors Shall Not

Perform Classified Work

Supervisory employees

shall perform no classified

work covered by this Agreement

except in emergencies and

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 grievance 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.

b. Article XXVII--MAINTAIN

INTEGRITY OF CONTRACT AND RESORT TO

COURTS

The United Mine

Workers of America and the

Employers agree and affirm

that, except as provided

herein, they will maintain the

integrity of this contract and

that all disputes and Claims

which are not settled by

agreement shall be settled by

the machinery provided in the

"Settlement of Disputes"

Article of this Agreement

unless national in character in

which event’ the parties shall

settle such disputes by free

collective bargaining as

heretofore practiced in the

industry, it being the purpose

of this provision to provide

for the settlement of all such

disputes and claims through the

machinery in this contract and

by collective bargaining

without recourse to the courts.

The Employer,

however, expressly authorizes

the Union to seek judicial

relief, without. exhausting the

grievance machinery, in cases

involving successorship.

Gs Article XXIII--SETTLEMENT

OF DISPUTES

Section (c) Grievance

Procedure

Should differences

arise between the Mine Workers

and an Employer as to the

meaning and application of the

provisions of this Agreement,

Or should differences arise

about matters not specifically

mentioned in this Agreement, or

should any local trouble of any

kind arise at the mine, an

earnest effort shall be made to

settle such differences at the

earliest practicable time.

Disputes arising

under this Agreement’ shall be

resolved as follows: ... (the

remainder of this section

discusses time periods and

various other procedural

matters.

d. Section (h) FPinality of

Decision or Settlement

Settlements reached

at any step of the grievance

procedure shall be final and

binding on both parties and

shall not be subject to further

proceedings under this Article

except by mutual agreement.

Settlements reached at steps 2

and 3 shall be in writing and

signed by appropriate

representatives of the Union

and the Employer.

The only exceptions to the

arbitration clause set forth above are:

Article XXIV--DISCHARGE PROCEDURE, which

provides for a more rapid method of

. arbitration; and Article III--HEALTH

AND SAFETY, which provides for different

participants in the earlier stages of

the grievance, but ultimately is

resolved in accordance with the

arbitration procedure set forth in

Article XXIII.

ARBITRATION AWARD

ISLAND CREEK CORPORATION

Oakwood, VA

AND

INTERNATIONAL UNION; UNITED MINE WORKERS

OF AMERICA, LOCAL 2232

STATEMENT OF THE CASE

These proceedings were initated by

the grievance of Kenneth Wagner filed

November 13, 1991, which reads:

"I charge a member of mgt. (Teddy

Collins) in violation of Art. I A, Sec.

Cc. Collins performed classified work

that is the normal duties of the

employees on his section on the dates 10-

1-91, 10-9-91 & 10-10-91. I am asking

for 24 hrs. at my regular rate of pay."

And the Mine Committee endorse this

A tt OD i eter attr hes

grievance by saying:

"Committee agrees with griev. This

is in violation of two arbitrator

decisions governing this issue. Local

union request $10,000.00 punitive

damage."

The matter was not otherwise

resolved in the course of the grievance

procedures permitted by the Contract and

it was brought on for hearing in this

arbitration.

Contract PROVISIONS

The applicable Contract provisions

appear in Article IA - Scope and

Coverage.

"Section (c) Supervisors Shall Not

Perform Classified Work

Supervisory employees’ shall

perform no classified work covered by

this Agreement except in emergencies and

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 grievance

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.

PRELIMINARY MATTERS

COURT REPORTER

When the parties met for the

hearing in this arbitration at 9 a.m. on

September 17, 1992 in the meeting room

at the Southwest Virginia Community

College, Management appeared with a

court reporter. The Union thereupon

objected to the Company's use of a court

reporter, noting that for one thing, the

contract “does not call for a court

reporter" and also stated that the

contract says that the arbitrator must

record the hearing. See contract,

Article XXIII, Section (c) (4)- They

also tendered an arbitration award in

which Arbitrator Feldman held that an

employed court reporter could not be

brought in and the question was 4 reason

for postponing the hearing.

Management responded that the Union

had not disclosed theixr objection as

required under the "Full Disclosure

Requirement” appearing in Article XXIII

of the contract. The fact of their

intention to record the hearing was

known to the Union for several months

and no objection had been raised. They

also remarked that the Union had, ona

prior occasion at least, brought ina

hired court reporter. The contract does

not say that it may not unilaterally be

recorded. Management said that there

are other arbitration decisions’ that

permit one party or the other to record

the hearing, but they were not available

because of the shortness of notice of

the objection.

See Article XXIII, Paragraph 4,

Section (e):

"In cases in which the parties have

agreed that there is no question of fact

involving grievance, the arbitrator may

decide the case on the basis of joint

statement of the parties, exhibits shall

be submitted. The hearing shall be

recorded by the arbitrator and shall be

closed upon completion of the

testimony."

Whereupon the arbitrator ruled that

either party, for their own purposes,

could record the transactions at the

hearing, but that, under the Contract,

it would not be an official record. The

arbitrator offered to record the hearing

on his own machine, except that

thereafter, before the matter went to

evidence, the parties stipulated that

both would join in the court reporter's

expenses, each party would have a copy

of the record and the arbitrator would

be supplied a copy.

, :

AVAILABLE EVIDENCE

The Union thereupon raised the

further issue that, on this arbitration

in prior stages of the grievance

procedures, Management had said that no

Classified work had been done with the

exception of coupling a pipe which was

intended as a training action and

hanging a line curtain which was

intended as instructing employees who

appeared not to be able to do it as is

permissible under the Contract. At a

previous date approximately 60 days

before, Management advised the Union

that they were going to present evidence

that it was a practice for classified

employees to ask supervisors to perform

classified work with the thought that

supervisors are allowed to perform such

work when asked and that it was a

"practice" in this mine. The Union had

asked the Management to identify the

employees who have asked for such

assistance for purposes of

investigation, but it was refused. The

Union then took the position that they

would object to the issue. More

recently, Management advised that they

had two witnesses who would testify and

the Union wanted Management to clarify

their position. This position is

inconsistent with the positions taken by

Management at the earlier stages that

there had been no classified work done

except in the two instances indicated

within the terms of hte Contractual

exceptions.

anecetiaTet

Management responded that there had

been no change in positions, but that it

was the common. practice of classified

employees asking for supervisors to help

and that this would be offered asa

response to the charge that Management

was condoning these violations on which

the Union was asking for punitive

damages. It was further stated that if

the Union was unsure of the defenses,

then it was their suggestion that the

rule of Arbitration Review Board, Case

No. 789, be followed requiring full

disclosure and if there is objection

raised indicating it had not been

followed, that the matter should be

referred back to the third step for full

disayssion on the basis of those facts.

The Union's response was they had no

desire to delay the hearing. The Union

had not been able to identify those

witnesses.

The Union also said that classified

people cannot negotiate on the Contract

for variations Or exceptions and,

therefore, there can be no practice that

something was done.

The arbitrator, on reviewing the

matter, noted that the demand had been

made for “punitive damages" in the Mine

Committees statement. It also then

appeared that previous decisions by

Arbitrator Marlyn Lugar and by

Arbitrator Peter Judah provided that

after a Cease and Desist Order,

"punitive damages" at this shop and on

this charge could be allowed. §

appears that "punitive damages" is based

on that history and that the testimony

of the two witnesses, 45S it had been

described, probably would be admissible

on that subject. If disclosure was

necessary, then they should be disclosed

and the matter should be adjourned if

requested. The Union, however, stated

that they did not want to go back to

Step 3. The Union withdrew its

objection. The proceedings went forward

in arbitration.

FACTS OF THE CASE

Witness No. 1: Jimmy Deel, Miner

Operator.

The first date referred to was

October 9, 1991 at which time Teddy

Collins was described as having

performed classified work:

(a) Hanging hangers up the hang

miner cable (on either the 9th or the

10th).

(b) Hanging charger cable.

October 10, 1991

(d) Blowing dust with a pinner

duster.

(e) Pulling curtain out.

Witness No. 2: Mark Rife, Roof

Bolter:

On October 9, he saw Supervisor

Teddy Collins:

(a) "Went and got some water

fittings and help couple a water line".

(b) “Hooking a scoop duster up".

On cross-examination, Mr. Rife was

asked if he had ever asked a foreman to

help do work and he said he had once Or

twice, "in a bind". The fellow worker,

Jimmy Deel, had filed a grievance based

on that earlier fact.

The occasion referred to by the

witness when there were “a couple

bundles of plates there and I just asked

Teddy to help throw them on there

because we was having to pack to save us

a trip down there".

Witness No. 3: Kenneth Wagner, the

grievant, Miner Operator.

October lst saw Teddy Collins

perform classified work.

(a) Setting timbers, hanging --

pulling up the curtain.

October 9 and October 10:

(b) Setting timbers.

(d) Pulling up water hose.

(e) Setting line.

(£) Blowing dust with a pinner

duster down behind the curtain in

return.

(g) Setting line curtain.

(h) Setting pogos.

(i) Helped load pogos.

(j) Line curtain.

(k) Timbers on the scoop,

including help on loading.

(1) Putting extendable curtain rod

on a miner curtain.

(m) Picking up scoop duster.

The witness added that he _ had

worked on these things "throughout each

shift".

On cross-examination, it appeared

that the witness had not seen the

operation of the dusting machine, but

when he came back found that it had been

used and he and his friend had both gone

to lunch and only the foreman had been

present.

When asked if he had ever asked

Collins to help him, "either last

Wednesday or last Tuesday" (week before

the hearing), he remembered that he had

‘20

asked, but admitted that Collins’ had

refused to do the work, but he denied

that he had responded to the refusal by

saying that "no one was watching".

No particular amount of time used

by foremen in doing these things was

shown.

No work time was shown to have been

lost by any particular employee.

Witness No. 4: Joe Clark, Safety

Representative for the Union, previously

Chariman of the Mine Committee at this

mine:

On inquiry put, he said there had

been numerous grievances of this kind

and that there had been discussion

between him and the mine foreman. He

had been asked for a week to get the

word out, which he agreed to. During

the week, he said that Management had

continued to violate the Contract. No

grievances were filed during that period

of time. This was when he went back in

1989. Exhibit was made of 16 grievances

that had been filed on this issue since

then. Most of these particular

grievances were settled on an offer made

by Management to pay the grievants a

stated number of hours pay-

Witness No. 5: Chris Lester,

Chairman of the Mine Committee.

He identified the pending

grievances on the same subject. There

was a packet of six grievances that had

been settled by payments made to

grievants. One case, however, had been

referred to arbitration on the grievance

of Russell Barton and heard by

Arbitrator Peter Judah on which, as will

appear below, an arbitration award was

issued, including $2,000.00 punitive

damages.

Since that decision, it appears no

further grievances have been settled in

the grievance procedures. All have been

denied.

An objection was entered to the

introduction of unresolved grievances,

which objection was specifically noted.

These grievances were on a number

of supervisors, but on Collins he said

there were one or two.

CONC eat hE 2 a Ae

A number of grievances on this

subject, some settled and some denied,

were tendered in evidence to show the

extent of repeated Contract violations.

Management then called the next

witness.

Witness No. 6: Eddie Ball, Mine

Manager.

He had previously worked at this

mine, but now had returned a year and

two months before, in July of 1991, as

the manager, supervising approximately

280 employees processing coal on three

non-rotating shifts.

The witness was acquainted with the

current grievance and participated in

grievance procedures October and

November of 1991. The first time he was

aware that punitive damages were asked

for was after Step 2 when the Mine

Committee had entered its position and

Management had to sign off on it.

At the time this witness came to

the mine, there were 19 outstanding

grievances, many of them for foremen

working. As an initial effort on his

part, he offered to try to settle these

grievances and did settle 19 of them

eventually, including all foremen

working grievances.

Reference complaints about

supervisors working, he told the Union

that he would "address all problems" and

"would do everything possible". He

suggested it would take a while. He

followed that with meetings with the

A a

—aee

foremen, instructing them to follow the

terms of the Contract. He later became

acquainted with Arbitrator Judah's

decision. His first instructions had

some effect, but he continued to have a

problem oF two and he called the foremen

back and initiated a system of

progressive discipline (on foremen) in

these cases. He has invoked this

discipline and applied it.

In September, 1991, he learned of

Arbitrator Judah's decision. In twelve

months prior to that date, there had

been 35 grievances filed that came to

the Second step referring to foremen

working only. In 11 1/2 months since

that time, there have been 10

grievances, 9 of which went to the

Second Step.

The witness declared he did not

allow foremen to perform classified work

and if they do, they were subject to

disciplinary action and he does not

condone any sach activity.

The manager goes underground on

occasions and he has had classified

employees ask him to help with work and

it has happened quite often. He

described one instance. Even he _ had

helped an employee with a particularly

clumsy and heavy problem of lifting

something. The employee reported it to

another employee and the other employee

filed a grievance which, in turn, was

settled.

Witness No. 7: Teddy Collins,

Section Foreman.

He was directly asked about the

charges made against him by the

witnesses for the Union, it which case

he denied each and all of them except

two instances, one where the employee,

Jerry Vanover, on October lst was

supposed to put up a check curtain,

which - was not doing properly. He

could not get it tight. He couldn't get

the pogo set up. It is not a very

difficult problem and after he tried

several times and failed, lt |

‘demonstrated to him how I wanted it

done...".

It was done in Order to demonstrate

how to install the pogo stick, which is

a spring loaded, two piece jack. It

took 45 seconds. He did have a problem

on October 9 when Rife and Wagner were

trying to install a curtain trying to

get the line curtain on an extendable

rod, one that had three plates. They

did not appear able to do it and what he

had done was to reach out and hold the

rod and told them to stop and told them

how to lay the pleats, but they were the

ones who actually threaded the line.

Also on that date, these same

employees had a ruptured water line.

The foreman had to tell them that he

needed the line hooked up and in telling

them, he put his hand on one and reached

over to the other. He did not put the

lines together and fasten them and was

one of the classified employees.

On that day they did challenge him

about “blowing dust" to which he said

that he had not done it.

Later, another employee was having

difficulty coupling a hydraulic fluid

hose and he was not using a hammer to

strike it into position. When the

employee said he did not have a hammer,

the foremen handed him a hammer and said

"you got to hit it like that", which the

employee did and completed the job.

On October 10, an employee was

supposed to be scattering rock dust and

he was using his knuckles to hit the bag

and break it open. The foreman

suggested an easier way. He opened his

pocket knife and split the bag and said

"r'll let you have my knife", but the

employee said he would rather do it with

his knuckle.

The witness reported a

confrontation with Wagner, the grievant,

over a specific job that Wagner had been

instructed to do about the depth of a

hole to be drilled. At this, Wagner had

become angry. Wagner directly filed

four grievances arising out of this

particular shift when it arose,

including the one at issue here.

This witness said he had been asked

many times by classified employees for

help as recently as the preceding

Tuesday.

Witness No. 8: Harry Litteral,

General Foreman.

| He described in detail on being

asked by 4a classified employee to help

out "almost on a daily basis", as

recently as the first of the week

preceding this hearing in arbitration.

Both Wagner and Rife had, on one

occasion or another, asked him and he

named others.

On cross-examination, ne said that

when asked the first of the week, he had

handed the employees 4a wrench. He

denied that he always did this.

Witness No. 9: Calvin Ward,

Manager of Mine Support Services.

He referred to various discussions

and settlements and to his knowledge of

hte preceding arbitration decisions.

Witness Jimmy Deel was recalled.

He responded to a=.“confrontation"

regarding the depth of a hole requested

to be drilled that had been described by

Mr. Collins.

Witness Eddie Ball on recall.

He testified to a particular

grievance which had been settled and

said that it was one of the 19 that he

undertook to dispose of when he first

came back to work.

ARBITRATION AWARDS IN EVIDENCE

The parties made exhibit of and

argued from two arbitration awards, one

by Arbitrator Maryln E. Lugar and the

other by Arbitrator Peter Judah.

A. March 5, 1981, Arbitrator

Maryln E. Lugar heard a grievance at

this same mine. The demand was pay for

the grievant for seven shifts on which a

seciton forman had performed classified

work. There was no dispute but that the

section forman had performed classified

work. The discussion, then, was a

review of applicable procedures and

consideration of appropriate remedies.

Based on the proposition that the

grievance forms have to fairly state the

offenses on which the grievance is

raised, it must also state the defenses

on which Management relies. In this

case, they had denied a cCentract

violation, but had not asserted either

of the specific Contractual defenses 45

an emergency oF for the purpose of

training or instruction. Because of

this, the arbitrator limited the scope

of his review to whether the Contract

was violated, to consideration of the

nature of the work performed and the

amount of such work which he performed.

The language of the Contract, being

4s specific as it is, is strictly

enforced by some.

The rule, as established and

applied by Mr. Lugar and other

arbitrators, is that the defense of de

minimis, even though he had earlier

wanted to apply it, is not applicable.

The individual employee was not

awarded any damages. The work was

described as "lending a hand" and he had

not been deprived of any work. On this

the arbitrator refers to a decision by

the Arbitration Review Board, an

arbitration review agency once in place,

but now discontinued, but whose opinions

continue to be binding under this

Contract, in which it was held that lost

wages could be Ordered only if someone

should have been offered the work and

was not or had _ been displaced by the

work that was done. On the other hand,

the suggestion that "lending a hand" is

a defense is rejected. In the absence

of proof of lost pay, the grievant will

not be awarded compensation.

Reference is made to ARB 78-26,

March 18, 1980. The Review Board had

stated only that the basic remedy was a

mandatory Order to cease such

performance by the supervisor. The

suggestion that the damages might go to

the Union representing. all the people

was not there endorsed. There is a

history amongst the arbitrators in the

industry to adopt the "cease and desist"

approach.

Arbitrator Lugar discusses the

possibility of damages for repeated

violation which he refers to as

"punitive damages". He says that they

might be available without a mandatory

Order to cease, but the upshot of an

extensive discussion is that after a

"Cease and desist" Order, a penalty for

violation of the Order would be

possible. He has referred to this

penalty under the phrase "punitive

damages".

In the actual decision, Arbitrator

Lugar held that the grievant had

standing to raise the question and that

the company was directed to cease

permitting supervisory employees to

perform classified work except as

permitted in the Contract.

B. The second opinion introduced

as evidence was the decision of

Arbitrator Peter J. Judah, June 13,

1991, a grievance at this same mine

complaining that supervisors had done

classified work. There was evidence

that this had been a continuing problem

at this mine. Arbitrator Lugar's 1981

decision was urged as controlling this

case. Arbitrator Judah found that there

had been a continuing problem at this

mine. He expressly found that the

supervisor had done classified work.

The work that he may have done was not

adequately detailed.

Arbitrator Judah was of the opinion

that Arbitrator Lugar's award said that

punitive damages could be considered.

Management had expressly agreed to

follow the Lugar decision. To this

point he makes reference to "the Curtis

Osborne case", September 13, 1988 in

which the Lugar award is especially

mentioned and the case settled on

Company's agreement. Arbitrator Judah

then says:

"It is to be noted, however, that

the basis of an award of punitive

damages in this case is not founded upon

the NBC Wage Agreement, but upon the

agreement made by the parties arising

out of the Curtis Osborne case."

The arbitrator then awarded no

compensatory pay to the individual

grievant, but having reviewed "a number

of factors, including the fact that

there is evidence of a continuing

problem", but not otherwise specifying

what other factors were considered, he

granted an award of $2,000.00 in

punitive damages and renewed the mandate

of cease and desist.

It is a fact in this case that the

Company has received and is operating

under a Cease and Desist order entered

by Marlyn Lugar and reaffirmed by

Arbitrator Judah.

CONTENTIONS OF THE PARTIES

The parties stated their position

at the opening of the hearing and then

at the direction of the arbitrator, were

asked to supply Briefs to the point that

it would clarify the application of

their position to the evidence as it had

actually been heard.

A. The Union says that the rules

of arbitration under this contract

follow the principal of res judicata.

The conduct of the party was directly

dealt with by Arbitrator Lugar who

entered a Cease and Desist order. In

that ruling, the arbitrator said that

the Company would be liable for punitive

damages if they continued to allow

supervisors to perform classified work.

Furthermore, the 1989 Curtis Osborne

grievance settlement, Management is said

to have agreed to follow that Cease and

Desist order is applicable now as is the

decision of Arbitrator Peter Judah, who

actually heard the case and awarded

$2,000.00 in punitive damages.

The Union says that they have done

everything they could to get the Company

to stop the practice. They have tried

settling grievances on a grievant that

the orders would be followed, but all

have failed. The Company continues to

this date to ignore the contract, even

since the Arbitrator Peter Judah's

decision in 1991.

Since that time, the Company has

not settled a single case. Nine

grievances are pending. The Company

always takes the same position that the

foreman had done no classified work.

The Company's series of defaults have

not been corrected.

Supervisor Collins did classified

work.

As to the proposition of the

testimony which Company appears to be

prepared to offer, it was announced that

Article l (a), Section D, would be

invoked to support its position and

Article 1, Article 26, Section (b) and

Article 29.

The relief they seek to award the

grievant 24 hours at straight time pay

and award the Union $10,000.00 as

punitive damages “for the expenses they

have incurred in their attempt to stop

the Company from continuing to

flagrantly violate Article Ia, Section

tc)".

In their Brief, the Union argues

substantially the same position, but

expands on their demand for "punitive

damages" and suggest that the expenses

of processing the grievance should

include the arbitrator's fee, the lost

time of the local committeemen and the

witnesses, the preparation time and all

other expenses. They say that the

grievant also lost time and when he had

to miss work to attend the arbitration.

All of this was the result of hte

willful violation. The previous

decisions in this matter are res

judicata.

As to the defense of the Company

that "Classified employees are

constantly entrapping Supervisors", the

contract does not permit regular

employees to change in terms of the

contract. It would appear the

Supervisors should learn how to Say no.

It is "is just another ploy to try to

convince the arbitrator to deny the

grievance and overturn the two prior

arbitrator's awards".

For all of this they say they are

entitled to the relief for which they

have asked.

B. Management says that the

evidence will show that the only

Classified work that caused either of

them to appear to do. Was because of

instructing classified employees, which

the. contract specifically permits, or to

train employees which the contract

specifically permits.

As to “punitive damages", the Union

appears to argue that Company has

condoned this conduct and has ignored

the Cease and Desist order. The Company

would show that they did not permit

foremen to violate the agreement and

that they had _ taken several steps to

comply with the mandates of both the

Judah and Lugar decisions, including

such things as conducting training

classes to teach the foremen how to stay

out ofthe situations. It is not proper

to expand this grievance. Under the

contract and with reference to ARB Case

No. 78-49 and ARB Case No. 78-26, "an

arbitrator does not have authority to

grant punitive damages". Arbitrator

Judah was incorrect.

Management, in its Brief, discusses

these points at some greater length.

Management had not expanded the

grievance and it deals only with the

issue of supervisors performing

Classifiec work. On the testimony of

the foreman, he had only done three

things either to instruct or

demonstrate.

Whatever appears here was de

minimis.

When the Union asked for 24 hours

at the ragular rate, the basic remedy

permissibl: is only to make the wrong

party whole. Reference is made to ARB

Case No. 78-26 and ARB Case No. 78-49,

both of which say that it is

compensatory damages to expect it or

compensatory and are not punitive.

As a matter of fact, this has been

held by a Federal Court to be the rule

in cases under the contract. In the

case of Westmoreland Coal Company v.-

District 28 UMWA, Local 8181, 550 Fed.

Suppl. 104 (1992), the same ruling was

made to another Federal Case in which

they vacated the arbitrator's decision

because there had been no finding of a

monetary loss. The Brief lists 9

additional arbitrations which Management

says are in their favor, of which copies

have been supplied with the Briefs.

5° sheen made exhibit in this

case are non-precedental. They have no

effect on this grievance which was

subsequent tc them. They are attempting

-to reopen settled grievances. None of

these grievances, even those that have

been settled "in a precedent fashion" do

not show that there has been a

continuing problem. Other arbitrators

have refused to recognize other

grievances as evidence even on request

for punitive damages.

The suggestion that the Company

should pay the expenses of the

arbitration are contrary to the

contract, which, in Article XXIII,

Section (b) says that parties share the

costs equally.

Classified employees consistently

ask the supervisors to do work for them

— se ee een

or with them. The fact should bar the

claim that the Company is "deliberately

allowing foremen".

Management refers to Lugar's

statement that compensatory damages

could be awarded at premium pay for an

entire shift, even though the supervisor

performed classified work for no more

than eight minutes, but that he did not

mandate "punitive damamges".

As to punitive damage, Arbitrator

Judah's decision is a bad judgment.

Management never agreed to pay punitive

damages on the Cease and Desist order.

There is no such evidence of any

additional contract.

As to what is binding in the

previous decisions, ARB Case No. 78-24

lays down four criteria before prior

decision can be binding. Management

says that this case does not contain the

same fact situation as in the earlier

cases.

Under all this, the Union is not

entitled to any relief for the grievant

or for themselves. That in no event

could anything be done other than make

someone whole.

DISCUSSION

The history of the ccllective

bargaining relationship between the

United Mine Workers of America and the

Bituminous Coal Industry is long and

contains much detail. The relationship

goes back well into the earlier years of

this century, if not before. The

current contract is the current

statement ofthe matter which have been

negotiated, tried out and renegotiated.

In point of fact, the provision in the

current contract which forbids

supervisors to do classified work has

been in the contracts in this industry

from the earliest dates. The cases

offered for reference in this

arbitration themselves show the

frequency of dispute on the question of

supervisors working.

The parties must have meant what

they said. The contract must be

enforced specifically as written.

The current contract provisions

read:

"Section (c) Supervisors Shall Not

Perform Classified Work

Supervisory employees’~ shall

perform no classified work covered by

this Agreement except in emergencies and

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 grievance

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".

It is noted:

1. That the testimony of the

parties in this arbitration is weighed

by the arbitrator with the burden on

Management to prove that they did not do

classified work.

2. The charge of a supervisor

having done work can be defended either

that it was necessary to train or

instruct an employee or that it was a

matter of emergency. There are no other

stated defenses to this proposition.

3. The conclusion from the

language as endorsed by the several

arbitration opinions is that it isa

flat rule that supervisors shall not do

classified work.

Clearly, the purpose of the rule is

to protect the body of work embraced by

the contract for performance by

Classified employees. It suggests that

at some prior time other management had

tried to limit the Union's membership

and/or their efforts to protect their

members. The answer at this point, and

at Similar points mentioned in the

contract, was, and is, to forbid any

invasion of the body of work by any

means, absolutely and flatly stated.

Any suggested defenses such as that

this work was too minor to count, or

that Classified employees asked for

help, simply are not available.

Management has assumed the burden of the

contract to keep classified work for

Classified employees. They will have to

Geliver on their promises.

The question of what relief can be

given, however, in the event a

supervisor has done classified work is

not as Clearly dated and has. been

discussed repeatedly in arbitrations and

court decisions. On the one hand, there

is the language in Mr. Lugar's opinion,

which represents a substantial portion

of the received wisdom in this industry,

that where a supervisor has done

Classified work, the grieving employee

could be paid compensatory pay even, as

Lugar says, a full shift at time and one-

half premium pay in the nature of a

damage. There is great logic in that

there is a damage even though it is

difficult to identify.

On the other hand, strict minded

jurists have tried to impose a common

law concept of specifically identified

monetary loss before any “actual" damage

can be allowed.

Those opinions have not found the

historical depth of the contract and the

long history of its construction and

application. Lost time because of these

invasions has always been broadly

identified. The jurisprudence used in

the industry recognized the contract as

the source, but also recognized that it

was not a contract between merchants.

If an employee's protected time is

invaded, he can be broadly compensated.

This should be, nevertheless, a payment

for a real loss.

The rule against de minimis as a

defense to the accusation equally does

not apply to the amount of damages to be

allowed.

On the subject of damages, there

have been a variety of positions taken

by a generation or more of arbitrators

trying to deal with the problem. The

material supplied to this arbitrator

includes the following items on the

subject:

December 30, 1980, Arbitrator

Lieberman in refusing damages to the

individual, allowed $1,000.00 award

given to the local Union "as a means of

preserving the integrity of the

agreement".

In 1981, we have Arbitrator Lugar's

decision that postulates the possibility

of a full shift at premium pay.

In 1982, Arbitrator Warns held

where 3 person had improperly been

denied access to the panel of a

successor Company, that the grievant and

the Union were not entitied to damages,

but that the district was given

$10,000.00 a5 damages, apparently

compensatory, for the expense of

pursuing the dispute.

In 1983, Arbitrator Searce gave a

grievant who had been inappropriately

assigned with no loss of pay, six hours

in "punitive damages".

In 1984, Arbitrator Roberts, ina

case involving misassignment of the

employee with a background of similar

violations, gave the grievant three

shifts of eight hours at time and one-

half as a monetary damage.

In 1991, Arbitrator Judah, gave

damage to the Union, called punitive, of

$2,000.00 for repeated violations of the

supervisors working rule.

In 1991, Arbitrator Dissen, ona

issue of supervisors doing classified

work, gave the grievants one shift pay

at time and one-half at 6% interest and

further ordered the employer to pay the

Union's share of the fees incurred in

arbitrating the matter at issue.

In 1991, Arbitrator Duff, finding

that there had been no interruption of

work, but there had been a violation of

the notice provisions, gave no

individual damages, but ordered

Management to bear the entire costs and

the expenses of the arbitration.

In 1992, Arbitrator Stoitenberg at

this same mine on an issue of

Supervisors working when they had failed

to appoint a dispatcher when the track

was in operation, decreed a Cease and

Desist order because the grievance had

not originally named a claim for the

Union's demand for punitive damages.

On Management's side, in December,

1979, ARB Decision 78-16, Chief Umpire

Selby declared that monetary damages are

limited to the amount so far as money

can achieve it, will compensate the

aggrieved party for his losses. Nothing

was said beyond that subject.

In 1980, ARB Decision 78-26, Chief

Umpire Selby dealt with supervisors

performing classified work and recited

that the basic remedy was mandatory

order to cease and desist. He says

further that if the performance caused a

loss to one or more employees, that loss

should be compensated, specifying the

amount. The loss, however, is subject

that it show that the grievant had, in

fact, (1) had a right to the work, (2)

that he was, in fact, deprived of the

work, (3) that his loss is shown “with a

reasonable degree of certainty as to the

amount". This was in response to a

demand that the arbitrator order the

creation of a new position.

In 1980, Arbitrator Davies, on the

same issue, referred to ARB 78-49, that

damages are analogous to compensation

for loss and went on to hold that he was

"forbidden" to set any amount as a

penalty.

In 1982, District Judge Williams

declared that there was no authority by

any stretch of an arbitrator's powers to

award a "purely punitive damage asa

remedy for violation of the collective

bargaining agreement". On this we

notice that the judge was dealing with a

straightforward first breach and claim

for compensation case where the

arbitrator had added in that simple set

of facts a punitive damage.

(ei Tes dS Bie SUMP IRS Cabelas i ok bes aR ome

In 1985, Arbitrator Feldman held

that he had ~no authority to grant more

than enough damage to compensate the

grievant. He gave the grievant four

hours premium pay and then an order of

cease and desist was entered, but no

other remedy was provided. Here, again,

we notice that the case was one of a

simple first order breach and before any

Cease and Desist order had been entered.

In 1985, Arbitrator Clarke in a

case with a past history of difficulty,

quotes the ARB Decision 78-26 and

recognizes a Cease and Desist order, but

as to "damages", found that they had not

been specifically proven. As far as any

penalty to make the Company supervise

the supervisors more closely, he found

that the Company was already working on

that problem. The relief was three

hours pay at straight time and a Cease

and Desist order.

In 1985, Arbitrator Hayford,

dealing with a breach of the contract

requirements, the order in which

employees should be called, put aside

the Union's request for additional

penalty and allowed none, but gave for

non-punitive relief based on one-half

hour of earnings for a lost lunch hour.

In 1988, Arbitrator Phelan limited

the award to a Cease and Desist order.

There was no prior order and there was

no substantial loss shown by the

employees directly.

The balance of the decisions

Dime ete UTA ARES ig FL bn I mt =

offered for consideration have generally

required some direct proof of a loss to

the grievant before they could get any

compensation. It might be noticed that

none of those cases had a prior Cease

and Desist order pending and they

usually look for lost time.

In 1990, Arbitrator Williams

inappropriately used the de minimis rule

in a case of supervisor's doing

classified work.

In 1990, Arbitrator Whyte, dealing

with another mine at this same Company,

recognized no prior order and denied

punitive damages and also denied

compensatory damages because none had

"actually lost wages".

In 1991, District Judge Copenhaver

in a “contracting out" case, voided an

arbitration award that gave the Union an

amount equal to 100 hours compensation.

The Court is quoted as saying that even

though the arbitrator did not call it

punitive, it was and that it could not

be allowed.

Reviewing all these cases as

regards to compensatory damages for work

time lost, it has to be an accepted rule

that there must be some direct

connection between lost time and the

compensation to the individual

grievant. Arbitrator Lugar's statement

early on that there could be

compensation given for even a whole

shift at time and one-half for what

appeared to be a relatively minor period

of time used, is not out of line with

the contract and is consistent with

history. The amount in any particular

case, however, cannot go s0 far as to

make it a penalty. There must be

reasonable limits. The damage to be

given should be appropriate in terms of

lost or diverted time, but it need not

be lost time spelled out minute by

minute.

On the facts of the present case,

the evidence shows infractions from time

to time and the effect is broadly

distributed over the work period. The

evidence shows a substantial number, of

repetitions over shifts during en

separate days, one on one day, several

on the others. The action and time is

not spelled out by a stop clock, but

there is a showing that work time was

interfered with.

As to whose time was interfered

with, that again is not specifically

shown. Any of the employees ont he

shift could have claimed it. Individual

grievants have repeatedly been given

awards because they called the Company's

hand and showed that they were

themselves affected by the invasion of

their work time. Degree in dtail may

not be clearly specified, but the fact

of a direct connection does appear. We

hold that a direct damage can be given

to the grievant based on the invasion of

work time and consistently as logic

permits in the terms of the whole facts

of the case identified.

It is appropriate to remark that

care and consideration must be given to

the "“lend-a-hand" situation. That fact

does not appear in this evidence on

these particular events. It is clear

that it has happened from time to time.

Where it does appear, the contract makes

the act itself almost indefensible by

Management. For any arbitrator in any

case, care must be taken to avoid

invidious impositions, trickery,

chicanery or even entrapment. The money

damage should be reasonable, can be

broad, but must not invite profiteering.

The contract provides for its own

enforcement. The system of grievance

arbitrations is directed to that

purpose. In less complicated

Situations, arbitrators have

consistently tried to compensate the

employee for lost time and wages. This

is a universal rule and has not, to our

knowledge, been questioned.

The background facts in this case

show that the problem can take another

step. Repeated violators of a contract

rule demand emphasis to provide

protection from the contractual system.

As it appears, arbitrators have used a

variety of means under various names to

do more than compensate the immediate

damage. The reference to "punitive

damage" is found and even without a

name, can lead to a decision like the

one Judge Copenhaver overturned. The

language of the contract does not use

that phrase.

+ enn seer ew

Again, however, the contract

provides for and asks for enforcement.

Arbitrator Lugar set a proper path based

on that understanding of the sense of

the contract. If there is something

more than a straight forward violation,

if there is a pattern of repeated

violations, then there can and should be

a mandage to cease and desist.

A Cease and Desist order itself,

however, must be enforceable. It does

not require the existence of a new

contract, even though Arbitrator Judah

reached for that further support for his

decision. The straightforward fact that

the Company had been ordered to stop it

is sufficient to authorize the

arbitrator standing in the stead, as he

does, of courts of general jurisdiction

for the purpose of dealing with this

contract, to lay down a reasonable

amount as a rule constituting the

imposition of a penalty for violation of

a prior order of quasi-judicial body.

This is not “punitive damages" in

the tort sense. The application of htat

term to damages given in this situation

is absolutely inappropriate. It is an

enforcement penalty and it stands as

such and is justified by the long

history within the Bituminous Coal

Industry contract. The contract has

grown over time as a way of life. To

those who live by it, there must be no

wrong without a remedy. Frustrations

have led to Cease and Desist orders.

Such an order means nothing unless it

can be enforced. The contract

contemplates effective enforcement.

The Union asks for the enforcement

penalty to be imposed and to paid to

them. A collective bargaining agreement

is a three sided transaction. In an

arbitration, the grievant and the Union

each have aie related but an independent

body of rights. It follows that on a

general rule to Cease and Desist, the

Union is a proper moving party and could

be with or without an individual

grievant. As the proper case, it is

possible that the enforcement award

should be given to the Union.

The arbitrator, on reading the four

corners of this contract in the context

of this industry holds that:

714

1. That any invasion of an

employee's work time by the intervention

of a supervisor doing classified work is

sufficient direct evidence and proof of

an actual damage inflicted on the

grievant. The grievant, who filed the

grievance which ultimately comes’ to

arbitration, is entitled to a damage

based on an assessment of the broad

influence of the actions of the

supervisor on the employment which the

grievant was then and there available to

do so.

y - If there are repeated

violations or an aggravation by

repetition, a Cease and Desist order is

proper and should be entered.

3. The arbitrator has full and

plenary authority to impose a penalty to

enforce a prior Cease and Desist order

in an amount that would be reasonably

connected to the circumstances in which

it occurs. The enforcement could be

payable to the Union.

Reviewing now the facts within this

framework of rules, it appears that, in

the presence of an abritral rule that

the Company should cease and desist

having supervisory employees doing

classified work, there were a series of

violations over the three days referred

to in the evidence. They did not take a

substantial part of the time, but they

took enough time that it can be balanced

on all the facts for which the

arbitrator here awards. the grievant a

total of pay for one-half a shift at

straight time.

With regard to the failure of

Management to follow the Cease _ and

Desist order, the record shows a series

of other violations claimed by members

of the Union. Of these, several were

settled by Management in line with the

new manager's policy of disposing with

old grievances. The other grievances

were not settled and stand undisposed

and are, therefore, unproven

allegations. When connected, however,

with the past history and with the

arbitrations actually heard at this

shop, there is proof that the particular

violations alleged and proven in this

atest nngratespanies aba

case were against a background of other

violations. It is sufficient to say

that the Cease and Desist order has been

violated.

On the other hand, however, the

action of the supervisors at their level

was not the instigated or specified

action of the Company. To the contrary,

testimony of the manager of this mine is

clear and cogent that he has, from the

beginning of his tenure, tried to settle

all the complaints, tried to clear the

deck and has worked carefully to

persuade supervisors that they

themselves can be punished for failure

to obey this rule. Inasmuch as the term

of this effort has run about a year and

two months to the time of the hearing,

it can be hoped that it will have some

further effect.

The direct and effective corrective

action of Management shows how and what

can and should be done in the presence

of an onerous contract rule. The

supervisors must learn to avoid

entrapment for the sakes of both the

Company and themselves.

The violation of the ordec,

however, is not wholly excused by that

effort because the integrity of the

contract and the function of the

arbitrators in the system created by the

contract, must be protected. It

therefore follows that a penalty can be

imposed for violating the prior order,

but that it should be considered ina

reasonable amount indicating approval of

the Company's efforts to reduce repeated

violations. This arbitrator, therefore,

allows a penalty for violation of the

Cease and Desist order of $1,000.00 to

be paid to the Union as one of the

parties to these proceedings.

AWARD

The grievance of Kenneth Wagner,

No. ICC-88-28-92-292 is hereby ALLOWED

on the following terms:

1. Grievant is allowed

compensation for one-half a shift pay at

straight time.

2. The Cease and Desist order

applicable to this mine entered by

Arbitrator Lugar, restated by Arbitrator

Judah, is here restated.

3 A penalty for failure to obey

the Cease and Desist order, based on the

experience since the Judah order, is

hereby imposed in the amount of

$1,000.00 to be paid to the Union.

This llth day of November, 1992.

ss: BBRNARD H. CANTOR

ARBITRATOR

Pe ee ee ee ce ee eee ede

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

LOCAL UNION NO. 2232, etc.,

Plaintiff,

ewan

ISLAND CREEK COAL CO., etc.,

Defendant.

Civil Action No. 90-0052-A

MEMORANDUM OPINION

Defendant, Island Creek Coal

Company, Virginia Pocahontas No. 5 Mine

("Island Creek") has moved the court for

summary judgment in the above styled

matter.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintifé Local Union Zaate

District 28, United Mine Workers of

America ("Local No. 2232"), on February

27, 1990, filed a motion for judgment in

the Circuit court for Buchanan County,

Virginia against Island Creek, pursuant

to Sect. 301 of the Labor Management

Relations Act, 29 U.S.C. Sect. 185.

This action was removed to this court by

Island Creek, uncontested by Local No.

2232, pursuant to 28 U.S.C. Sect.

1441(b). Local. No. 2232 is asking the

court to enforce an arbitration award

issued on March 23, 1981, as well as, a

grievance resolution dated September 13,

1989 wherein Island Creek agreed to

abide by the March 23, 1981] arbitration

decision. In addition, Local No. 2232

seeks money damages for the harm it has

suffered as a result of the breaches

-83

which occurred within the statutory

period.

At all times relevant to this

action, both Local No. 2232 and Island

Creek were bound by the terms of the

"The National Bituminous Coal Wage

Agreement of 1978, 1984 and 1988,"

("Wage Agreement"). Whether or not

these agreements are cumulative is in

dispute. The wage agreements contain an

exclusive and binding grievance and

arbitration procedure to resolve

disputes arising under the agreement

between Island Creek and Local No.

Za3a-< Specifically, Article IA, Section

(¢) of each wage agreement also

expressly prohibits supervisory

employees from performing classified

work. Section (c) states the following:

"Supervisory employees shall

perform no classified work covered by

this Agreement except in emergencies and

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 grievance

machinery and in such proceedings the

following will apply:

The burden is on the Employer to prove

that classified work has not been

performed by supervisory personnel."

(emphasis added).

On March 23, 1981, Arbitrator

Marlyn E. Lugar issued a decision which

directed Island Creek to "cease

permitting supervisory employees to

perform classified work, except ‘as

permitted in Article IA, Section (c)

. Local No. 2232 alleges that

intially the performance of classified

work by supervisors after the order was

not a problem; however, in the past

several years, violations have increased

significantly. As a result, Local No.

2232 seeks intervention by the court.

However, Island Creek contends that the

alleged violations of the arbitration

order falls within the purview of the

wage agreement, and thus the court

should refer the parties to the

grievance machinery for which they

collectively bargained.

II. Statute of Limitations

First, Island Creek argues that the

union's attempt to enforce the March 23,

1981 decision of arbitrator Marlyn E.

Lugar is time barred. Local No. 2232

brings this claim pursuant to Sect. 301

of the LMRA, 29 U.S.C. Sect. 185. Both

parties agree that "Congress has not

enacted a statute of limitations

governing actions brought pursuant to

Sect. 301 of the LMRA .. . (therefore),

‘the timeliness of a Sect. 301 suit

is to be determined, as a matter of

law, by reference to the appropriate

state statute of limitations.'" United

Parcel Service, Inc. vv. Mitchell, 451

U.S. 56, 60 (1981) (quoting, United Auto

inte

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 704-05 (1966). See also Local

Union 8181 v. Westmoreland Coal Co., 649

F. Supp. 603, 605 (W.D. Va. 1986).

In this matter, the parties offer

Va. Code Ann. Sect. 8.01-246 which

provides for a five (5) year statute of

limitations for written contracts as the

appropriate statute of limitations.

Island Creek cites United Auto Workers

as authority for the application of

state limitation periods for contract

claims to Sect. 301 claims for the

breach of collective bargaining

agreements. Id. at 705-07. However,

Local No. 2232's claim goes beyond the

mere breach of a collective bargaining

agreement; it involves the enforcement

of an arbitration award.

Section 8.01-246 states that

"actions founded upon contract, other

than judgments or decrees, shall be

brought...within five years." (emphasis

added). Va. Code Ann. (1984). It is a

settled law in Virginia that an

arbitration “award, being the judgment

of a judge of the parties' own choosing"

are to be treated as final and binding

unless contrary to law. Va. Beach

Realtors v. Hogan, Inc., 224 Va. 659, —

662 (1983). Thus, the five-year

limitation period of Sect. 8.01-246

expressly excludes valid arbitration

awards which are also judgments.

Furthermore, "federal courts have

Clearly held that if an ‘arbitration

award' has been reached, a Sect. 301

suit is more closely analogized toa

suit to vacate an arbitration award to

an ordinary contract action." Local

Union 8181 v. Westmoreland Coal Co., 649

F. Supp. 603, 606 (W.D. Va. 1986); Ross

v. Bethelem Steel Corp., 109 LRRM 2791

(D. Md. 1981) (citing United Parcel

Service v. Mitchell, 451 U.S. 56 1981).

Although not plead as such, Local

No. 2232 is asking this court to confirm

the arbitration award of Ms. Lugar. The

Uniform Arbitration Act of Virginia

("The Act") pursuant to Sect. 8.01l-

581.09 permits the enforcement of

arbitration awards in the following

manner:

"Upon application of a party, the

court shall confirm an award, unless

within the time limits hereinafter

imposed grounds are urged for vacating

of modifying or correcting the award, in

which case the court shall proceed as

provided in Sects. 8.01-581.010 and 8.01-

581.011." (emphasis added). Va. Code

Ann. Sect. 8.01-09 (Supp. 1990).

Sections 8.01-581.010 and 8.01l-

581.011 require any application to the

court to vacate, modify, or correct the

award to be filed within 90 days of the

issuance of the award. See Va. Code

Ann. Sects. 8.01~581.09 - 8.01-581.011

(Supp.-. 1990); Westmoreland, supra, at

605-606. Thus, absent such petitions to

challenge the validity of the oueiitis the

court is directed by the General

Assembly to confirm the award. In

essence, Sect. 8.01-581.09 establishes

an unlimited period of time to confirm

or to enforce arbitration awards after

the expiration of the 90-day period.

The Supreme Court in Hoosier

Cardinal requires state limitation

statutes to be analogous’ to Sect. 301

suits and consistent with federal labor

policy. Arguably, a state limitations

statute which allows arbitration awards

to be confirmed or enforced within an

unlimited period of time is contrary to

federal policy favoring speedy

resolution of labor arbitration

disputes. See United Parcel Service,

Inc. Vv. Mitchell, 451 U.S. 56, 64

(1981). However, the Supreme Court upon

refusing to apply a state six-year

limitation period of

contract actions to a Sect. 301 suit,

stated:

al SEE New York had adopted a

specific 6-year statute of limitations

for employee challenges to awards of a

joint panel or similar body, we would be

bound to apply that statute under the

reasoning of Hoosier Cardinal. But in

cases such as this, where general state

limitations periods were enacted prior

to the enactment of Sect. 301 by

Congress in 1947, we are necessarily

committed by prior decisional law to

choosing among statutes of limitations,

none of which £it hand in glove with an

action under Sect. 301 (a) of the LMRA."

Id.

However, as recent as 1986,

Virginia enacted the Uniform Arbitration

Act which establishes an indefinite

period of time for the confirmation of

an award. The Act goes on to mandate

that "upon granting confirmation, 42

judgement or decree shall be entered

and be docketed and enforced as any

other judgement or decree." Va. Code

Ann. Sect. 8.01-581.022. The Supreme

Court, by its own statement in Mitchell,

has held that any analogous state

limitation period promulgated after the

enactment of Sect. 301 by Congress is

automatically binding. Thus, the court

appears to be bound to apply Sect. 6.Gi-

581.09 to the instant case; however, it

is still concerned that the unlimited

confirmation period of the Virginia

statute will hamper the goals and

policies of federal labor law.

In Derwin Vv. General Dynamics

Corp., 719 F.2d 484 (lst Cir. 1983), the

court was confronted with a

Massachusetts confirmation statute

almost identical to Virginia's statute.

Section 10 of Mass. Gen. Laws ch. 150C

provides that the court "shall confirm

an award unless within the time limits

herinafter imposed grounds are urged for

vacating, modifying or correcting the

award." Id. at 489. Section 10

prohibits any challenge to the validity

or finality of an arbitration award

after the 30-day limitation period.

The First Circuit emphasized how

Sect. 10 automatically cut off stale

challenges to arbitration awards, thus

"“encourag(ing) parties to forego merely

formal judicial proceedings aimed at

obtaining confirmatory orders.” Also,

parties could forego the expense of

litigation, because _they could in good

faith treat the unchallenged arbitration

award as final. Id. Therefore, a

"lengthy period for actions to confirm

does not threaten the finality of

arbitration award" and is consistent

with federal labor policy. Id.

Likewise, the Virginia confirmation

statute prohibits any challenge to the

validity of an arbitration award after

the 90-day period, thus alleviating any

concern the court has in regard to the

finality of an award. Consequently, the

court should apply Va. Code Ann. Sect.

8.01-815.09 as the appropriate statute

of limitations as to Local No. 2232's

action to enforce the arbitration

award. Since the 90-day period to

challenge the arbitration award rendered

by Ms. Lugar has long passed, the award

may be confirmed by this court.

III. REFERRAL OF DISPUTE TO ARBITRATION

The Union alleges that Island Creek

has repeatedly violated arbitrator

Lugar's order instructing them to cease

the use of supervisory employees to

perform classified work. As a result,

Local No. 2232 is asking this court to

enforce the arbitration award and to

enjoin Island Creek from permitting

supervisory employees to perform

Classified work. However, Island Creek

argues that the court should not rule on

the substantive terms of the 1981

arbitration award as it did five years

ago in United Mine Workers of America

District 28 nd Local Union No. 2232 v.

cane

VP-5 Mining Co., and Island Creek Coal

Company, 630 F. Supp. 1210 (W.D. Va.

1986).

In that case, Local No. 2232 wanted

the court to enforce a grievance

settlement prospectively in other

grievances pending for arbitration.

This court granted VP-5 Mining Company

and Island Creek's summary judgement and

stated:

"(e)ven where the parties are not

in dispute over the actual terms of a

Grievance settlement, but only over a

breach of those terms has occurred as

presented by the circumstances of a

subsequent grievance, the court must

still defer to the parties' bargained-

for method of dispute resolution." Id.

at 1214, citing Little Six Corp. v.

United Mine Workers of America, 537 F.

Supp. 216 (W.D. Va.), affirmed, 701 F.2d

26 (4th Cir. 1983).

Like the settlement agreement, the

1981 arbitration award conclude a

specific grievance. There is no

fundamental difference between this

instant matter and the case heard

previously 1986. Furthermore, other

courts, including the Third and Fifth

| ne a eee See

Circuits, who have found that

"regardless of how clear it may be that

the issues decided at a former

arbitration proceeding are identical to

those subsequently scught to be

relitigated, the question of identity of

issues, nevertheless, is for the

arbitrator and not the court." Little

Six, supra, at 219 (quoting T.L.1., Inc.

Vv. SCeCneta:i 3

v. General Teamsters Local Union No.

261, SiS Ff. Supp. 27, 29 (W.D. Pa.

1981). See also Local 103, Int'l Union

of Elec., Radio and Mach. Workers v. RCA

[.o? See

Corp., 516 F.2d 1336, 1339 (3rd Cir.

1975); New Orleans s.S. Ass'n v. General

Longshore Workers, 626 F.2d 455, 468

(5th Cir. 1980), affirmed, 457 U.S. 702

(1982). As noted in Little Six, when an

arbitration clause such as Article IA,

Section (c) is written very broadly, the

court "can not say with positive

assurance that the arbitration clause is

not suspectible of an interpretation

that covers the asserted dispute."

Little Six, supra at 221. Thus, once

again the court concludes that Local No.

2232 is under a duty to arbitrate.

However, Local No. 2232 directs the

court's attention to the latter part of

the Little Six opinion where this court

stated:

"(A)ssuming there is an exception

to the ... duty to arbitrate which

allows a federal court to grant

declaratory and injunctive relief on res

judicata principles prior to

101

™

arbitration, the factual basis of the

contested grievances must at least be

identical." (Citations omitted) Id. at

222i. The court acknowledged the

existence of a split among the circuits

concerning the degree of identity of

issues to invoke res judicata. The

Seventh Circuit utilizes a narrow

standard of identity.

The Union contends that the

arbitration awards constitute

interpretations of the collective

bargaining agreement with a sort of res

judicata effect which makes arbitration

of the remaining grievance unnecessary.

But, "notions of res judicata are less

suited to the informal process of

industrial arbitration than to the

102

litigation process, and, to the extent

that res judicata has been used in

arbitration, a strict factual identity

is required.”

id.

In order for this court to relieve

Local No. 2232 of its duty to arbitrate,

it must find that the identical factual

basis of the 1981 decision exists in the

present grievance of Union. In essence,

the court must find that Island Creek is

permitting supervisory employees to

perform the same or similar type of work

int he Virginia Pocahontas No. 5 mine as

determined to be classified work in the

1981 arbitration decision. Furthermore,

the burden is on Local No. 2232 to prove

identity of issues because it is the

103

party seeking to avoid arbitration under

the principle of res judicata. ta. at

222.

Local No. 2232 attached arbitrator

Lugar's opinion from the 1981

arbitration as 4 part of its complaint.

In the opinion, the arbitrator noted

that the standard grievance form did not

allege the nature of the classified work

performed. 1981 arbitration opinion p.-

2. However, several witnesses for the

Union made brief references to the type

of classified work performed by the

supervisors, such as, “hung miner cable,

rock dusted, set safety jacks in the

face, helped clean tailpiece, helped

hung curtains, helped bring in supplies,

and run the scoop." 1981 arbitration

104

opinion p. 6. Like the 1981 grievance

form, the Union's present complaint does

not allege the nature of the recent

violation of the arbitration order. The

Union attached to their complaint copies

of several recent grievance forms

concerning classified work performed by

supervisors in violation of 1981

arbitration order, however, not one of

the grievances alleges the nature of the

work performed. Absent some facts as to

the nature of the alleged classified

work performed by the supervisors, Local

No. 2232 has failed its burden to

establish identity of issues to invoke

res judicata. Therefore, the Union has

not shown facts sufficient to entitle it

to be relieved of the duty to arbitrate.

105

Furthermore, Article IA, Section

classified work in emergencies and

during training. While the pleadings of

neither party bring these issues

specifically into issue, the court notes

that Island Creek denies every factual

allegation of the Union with regard to

hiring supervisors or improperly using

supervisors in classified jobs. These

factual issues must be submitted to an

arbitrator, not this court, for

decision. Article IA, Section (c)

mandates that disputes "be adjudicated

through the grievance machinery."

Also, in light of the court's

ruling in the 1986 case, any grievance

concerning the 1989 agreement resolution

“i 106

should be resolved by an arbitrator and

not this court. Consequently, the court

will not address the other issues raised

by the parties.

CONCLUSION

In accordance with this Memordandum

Opinion, an Order will be entered

Granting summary judgement to defendant

Island Creek.

The Clerk is directed to send

certified copies of this Memorandum

Opinion to counsel or record.

ENTER: This 9 day of January,

1991.

THE HON. GLEN M. WILLIAMS

107

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

ISLAND CREEK COAL COMPANY,

Plaintiff,

LOCAL UNION 2232, UNITED MINE

WORKERS OF AMERICA, et al.,

Defendants.

Civil Action No. 92-0174-A

MEMORANDUM OPINION

Plaintiff Island Creek Coal Company

("Island Creek") brings this action for

declaratory and injunctive relief

against defendants International Union,

United Mine Workers of America; District

28, United Mine Workers of America; and

Local Union 2232, United Mine Workers of

America (collectively "UMWA"). Island

108

Creek seeks to vacate an “enforcement

penalty" of $1000.00 imposed by an

arbitrator pursuant to the National

Bituminous Coal Wage Agreement

("NBCWA"). UMWA has filed a

counterclaim seeking to enforce the

penalty. The court has jurisdiction

pursuant to 29 U.S.C. Sect. 185. The

court finds that the arbitrator exceeded

the scope of his authority in imposing

the penalty and vacates that portion of

his award.

The NBCWA prohibits the performance

of "classified work" by supervisory

personnel. 1/ Island Creek and UMWA

af Article IA, Section (c) of the

1988 version of the NBCWA provides:

109

have a history of disputes that dates to

1981 over Island Creek's performance of

classified work. In that year

Arbitrator Marlyn Lugar arbitrated a

Supervisory employees shall perform no

classified work covered by this

Agreement except in emergencies and

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 grievance

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.

(Pl.'s Statement of Material Facts Not

in Dispute, Ex., 1 at 5).

110A

grievance concerning the performance of

Classified work at the same mine

involved in this case. Finding that

Island Creek violated the NBCWA's

prohibition, Lugar ordered Island Creek

to cease and desist. He further

suggested that “punitive damages" might

be appropriate in the event of future

violations. The parties settled the

same kind of grievance in 1988. Island

Creek agreed that it would stop its

supervisory employees form performing

Classified work and abide by lLugar's

1981 decision. The _— arose again in

1990 at the same mine. Arbitrator Peter

Judah restated Lugar's cease and desist

order and imposed punitive damages of

$2000.00. Arbitrator Judah emphasized

110B

that the punitive damages were based on

the 1988 settlement agreement and not

the bargaining agreement itself.

Island Creek and UMWA entered into

the present version of the NBCWA_ on

February 1, 1988. 2/ In 1991 an Island

Creek employee filed a grievance

asserting that Island Creek violated the

agreement when one of its supervisory

employees performed Classified work.

2/ See National Bituminous Coal Wage

Agreement Between Island Creek

Corporation and International vaion

United Mine Workers of America (Pl.'s

Statement of Material Facts Not in

Dispute, Ex. 1).

111

The parties ultimately sumbitted the

matter to arbitratio pursuant to the

terms of the NBCWA. The arbitrator,

Bernard H. Cantor, reviewed the history

of similar disputes at the mine and the

resolution of those disputes. Finding

that there had been similar violations

and an earlier cease and desist order,

he stated:

"If there is something more than a

straight forward violation, if there is

a pattern of repeated violations, then

there can and should be a mandate to

cease and desist.

A Cease and Desist order itself,

however, must be dneniiiieanea: It does

not require the existence of a new

contract, even though Arbitrator Judah

112

reached for that fact the Company had

been ordered to Stop it is sufficient to

authorize the arbitrator standing in the

stead, as he does, of courts of general

jurisdiction for the Purpose of dealing

with this contract, to lay down a

reasonable amount as a rule constituting

the imposition of a penalty for

violation of a Prior order of quasi-

judicial body. This is not "punitive

damages" in the tort sense. The

application of that term to damage given

in this Situation is absolutely

inappropriate. It is an enforcement

penalty and it stands as such and is

justified by the long history within the

Bituminous Coal Industry contract. The

contract has grown over time as a way of

life. To those who live by it, there

must be no wrong without a_ remedy.

Frustrations have led to Cease and

Desist orders. Such an order means

nothing unless it can be enforced. The

contract comtemplates effective

enforcement." Compl. Ex. 1 at 30-31).

Arbitrator Cantor then found that

Island Creek violated the NBCWA, awarded

the grievant compensation, restated the

cease and desist order, and ordered

Island Creek to pay UMWA an "enforcement

penalty" of $1000.00 because he had

found that Island Creek had violated an

earlier cease and desist order.

II.

A federal court's review under

Sect. 301 of the Labor Management

114

Relations Act, 29 U.S.C. Sect. 185, of

an arbitrator's award is very limited.

Cannelton Indus. Inc. Vv. Dieatricte i7.

United Mine Workers, 951 F.2d 591, 593

(4th Cie. 1991). The parties to a

collective bargaining agreement bargain

for the arbitrator's interpretation,

"and so far as the arbitrator's decision

concerns construction of the contract,

the courts have no business overruling

him because their interpretation

is different from his." United

Steelworkers v. Enterprise Wheel & Car

Corn., 363 a 2 593, 599 (1960).

Moreover, "(t)he labor arbitrator's

source of law is not confined to the

express provisions of the contract, as

the industrial common law -- the

115

practices of the industry and the shop --

is equally a part of the collective

bargaining + #§ = agreement although not

expressed in it." United Steelworkers

v. Warrior & Gulf Navigation Co., 363

U.S. 574, 581-82 (1960). See

Clinchfield Coal Co. v. United Mine

Workers Dist. 28, Local Union 1098, 567

F. Supp. 1431, 1434 (W.D. Va. 1983),

aff'd. 736 F.2d 998 (4th Cir. 1984).

At the very least, however, the

arbitrator's decision “must draw its

essence from the contract and cannot

simply reflect the arbitrator's own

notions of industrial justice." United

Paperworkers Int'l Union v. Misco, Inc.,

484 U.S. 29, 36 (A987). Absent an

express provision in the collective

115A

st < ‘ect ana gpmge ana nanny fancrmmane aR

bargaining agreement, the industrial

common law ordinarily does not,

according to the court of appeals for

this circuit, permit the arbitrator to

impose punitive damages. 3/ See

3/ Ordinarily punitive damages are not

recoverable in contract actions.

Although there is some language in the

cases in the labor field to the effect

that an arbitrator might have some

authority to impose punitive damages to

redress "willful or wanton conduct,”

neighter the court of appeals for this

Circuit nor the Supreme Court has so

held. Baltimore Regional Joint Bd., v.

Webster Clothes Inc., 596 F.2d 95, 98

aaa

(4th Cir. 1979). It is unnecessary to

116

Cannelton Indus., 951 F.2d at 594;

Baltimore Regional Joint Bd., 596 F.2d

decide the issue in this case, however,

because Arbitrator Cantor found no

evidence of willful conduct. According

to Arbitrator Cantor: "the action of

the supervisors at their level was not

the instigated or specified action fo

the Company. To the contrary, testimony

of the manager of this mine is clear and

cogent that he has, from the beginning

of his tenure, tried to settle all

complaints, tried to clear the deck and

has worked carefully to persuade

supervisors that they So can be

punished for failure to obey this rule."

(Compl. Ex. 1 at 32-33).

117

at 98; Norfolk & W.R. Co. v. Brotherhood

of Ry., Airline and _S.S. Clerks, 657

F.2d 596, 602 (4th Ciz. 1981);

Westinghouse Electric Corp. Aerospace

Div. v. International Bhd. of Electric

Workers, 561 F.2d 521, 523-24 (4th Cir.

1977), cert. denied, 434 U.S. 1036

(1978). 4/ It follows that this case

4/ At least three other circuits

are in accord. See Dorado Beach Hotel

Corp. v. Union de Trabajadores de la

Industria Gastronomica Local 610, 959

F.2d 2 (lst Cir. 1992); Howard BP. Foley

Co. Vv. International Bhd. of Elec.

Workers, Local 639, 789 F.2d 1421, 1423

(9th Cir. 1986); United Elec., Radio and

118

presents two questions: whether’ the

award is punitive and, if so, whether it

draws its essence from the collective

bargaining agreement.

A. The Award

Although Arbitrator Cantor

distinguishes an “enforcement penalty"

from eatin damages' in the tort

sense," the distinction is not relevant

here because the enforcement penalty is

still punitive in nature. 5/

Mach. Workers, Local 1139 vv. Litton

Microwave Cooking Products, Litton

Systems, Inc., 704 F.2d 393, 398 (8th

Cir. 1983).

5/ Arbitrator Cantar appears’ to

consider the enforcement penalty

119

Arbitrator Cantor awarded the

individual grievant compensation for the

invasion of his work time, and no other

actual damages have been shown. Thus,

as in Baltimore Regional, "there is

nothing in the record showing (the award

nonpunitive because it is not simply an

attempt to punish, but rather it is an

attempt to coerce through punishment.

Although that distinction may be

relevant in judicial proceedings where

the criminal or civil nature of contempt

fines is at issue, see Bagwell v.

International Union, United Mine

Workers, 423 S.E.2d 349 (Va. 1992),

cert. ranted, -- U.S. <--, 113 8. Ct.

2439, (1993), the issue here is whether

the award is punitive.

120

to be) validly compensatory, and it is

manifestly not nominal." 596 F.2d at

98. The award, therefore, though

considered nonpunitive by Arbitrator

Cantor, is in fact punitive. See id.;

Westinghouse, 561 F.2d at 523-24;

Georgia Power Co. v. International Bhd.

of Elect. Workers, Local 84, 995 F.2d

1030, 1032 (llth Cir. 1993) ("(a)n

arbitrator's denomination of an award as

compensatory will not prevent the court

from determining that the award is in

fact punitive").

B. The Agreement

The NBCWA does not expressly

provide for punitive awards. | If the

award is to be validated, therefore, it

must find support in the industrial

121

common law which, according to the

Supreme Court, "is equally a part of the

collective bargaining agreement although

not expressed in s¢.* United

Steelworkers, 363 U.S. at 581-82. On

that score the court Linds that

Arbitrator Cantor has imposed his own

notion of industrial justice.

In concluding as he did, Arbitrator

Cantor reasoned that "(t)he contract

contemplates effective enforcement,"

that effective enforcement requires

cease and desist orders, and that cease

and desist orders are meaningless

without enforcement penalties. His

reasoning, which seems to be an effort

to bootstrap authority, fails to

recognize two points. First, remedies

122

are available if the parties do not

abide by the arbitrator's decision. A

party may bring an action in district

court to enforce the arbitrator's award

whether that award is for a monetary

obligation or for a specific relief.

Thus, a party may enforce in district

court an arbitrator's “cease and desist

order" if that order draws its essence

from the collective bargaining

agreement. See General Dynamics Corp.

V. Industri Union of Marine and

Shipbuilding Workers, 469 F.2d 848, 851

(lst Cir. 1972). 6/ That award would

6/ In fact, "(n)othing could be closer

to the core of the. federal labor

arbitration for by the (collective

123

then be backed by the equitable powers

of the court. Second, the arbitrator is

empowered by the collective bargaining

agreement, not by unbridled notions of

remedial justice. 7/ Generally, the

bargaining agreement), to an

arbitrator's injunction, ..." General

Dynamics Corp., 469 F.2d at 851.

T/ Although Arbitrator Cantor's

decision is based upon his apparent

perception that an arbitrator has the

inherent authority to impose a punitive

award if necessary in the arbitrator's

view to effectively enforce a collective

bargaining agreement, very liberally

construed his opinion also suggests that

the parties course of dealing at this

shop invested him with authority to

124

(FN 7, cont.) impose those awards. That

course of dealing was, however,

insufficient. In 1981 Arbitrator Lugar

found that supervisory employees’ had

performed classified work in violation

of the NBCWA and ordered Island Creek to

cease and desist. Arbitrator Lugar also

suggested that punitive damages might be

imposed if there were additional

violations. In 1988 the parties settled

a similar grievance, and Island Creek

agreed to abide by Lugar's 1981

decision. In 1991 Arbitrator Peter

Judah found that supervisory employees

had again performed classified work. He

issued a cease and desist order. He

also imposed punitive damages based on

the 1988 settlement agreement.

(FN 7 cont.) None of these events

invested Arbitrator Cantor with

authority to impose a punitive award.

An arbitrator cannot create his. own

authority ‘ That Arbitrator Lugar

believed in 1981 that he might have

authority to impose punitive damages in

the event of future violations is

clearly insufficient. Likewise, the

fact that the parties agreed to abide by

his decision is insufficient. Lugar

decided only that Supervisory employees

performed Classified work, and he

ordered the Company to cease and

desist. The fact that Arbitrator Judah

had found earlier that he had authority

to impose punitive damages is immaterial

in light of the fact that the present

126

parties compensatory remedy for

violation of their collective bargaining

agreement. Absent some expression of

mutual assent that bargain does not

invest the arbitrator with authority to

punish.

ItlI

Punitive damages are not available

in either a suit for breach of a

collective bargaining agreement or ina

suit for breach of a duty of fair

representation. See Merk v. Jewel Food

Stores Div. of Jewel Cos., 945 F.2d 889,

899 (7th Cir. 1991)m, cert. denied, --

FN 7, cont. case was not decided

under a new agreement negotiated against

the backdrop of a clear, common

understanding that punitive awards would

be within the arbitrator's authority.

127

U.S. --, 4112 8. Ct. 1951 (1992). The

potential for high punitive awards in

those actions "might threaten the goal

of harmonious resolution of labor

disputes which is at the core of the

national labor policy." Id. at 899.

Although the enforcement penalty in the

present case isa relatively small one,

there is no reason why -- if imposition

of such penalties is committed to the

remarkably unbridled discretion of a

labor arbitrator -- that onerous, yet

unreviewable burdens could not be

imposed. If the parties are to chart

such a course they should do so in

unmistakable terms.

For the reasons” stated above, the

arbitrator's award will be enforced in

part and vacated in part.

128

An appropriate order will issue.

ENTER this 23rd day of September,

1993.

THE HON. SAMUEL WILSON

129

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ISLAND CREEK COAL COMPANY,

Plaintiff-Appellee,

Vv.

DISTRICT 28, UNITED MINE

WORKERS OF AMERICA,

Defendant-Appellant.

No. 93-2305

Appeal from the United States

District Court

for the Western District of Virginia,

at Abingdon.

Samuel G. Wilson, District Judge.

(CA-92-174-1

Argued: May 9, 1994

Decided: July 6, 1994

Before WILKINS and HAMILTON, Circuit

Judges, and ELLIS, United States

District Judge for the Eastern District

of Virginia, sitting by designation.

Affirmed by published opinion. Judge

Hamilton wrote the opinion, in which

Judge Wilkins and Judge Ellis joined.

COUNSEL:

ARGUED: Susan Debra Oglebay, KOBAK &

OGLEBAY, Pound, Virginia, for Appellant,

David J. Laurent, POLITO & SMOCK, P.A.,

Pittsburgh Pennsylvania, for Appellee.

ON BRIEF: Daniel L. Fassio, Pittsburgh,

Pennsylvania, for Appellee.

OPINION

HAMILTON, Circuit Judge:

District 28, United Mine Workers of

America (District 28), appeals’ the

district court's decision vacating the

penalty portion of an arbitration

award. For the reasons stated herein,

we affirm.

The National Bituminous Coal Wage

Agreement of 1978, 1984, and 1988

(NBCWA) prohibits’ the performance of

"Classified work" 1/ by supervisory

1/ Classified work is bargaining unit

work reserved for classified employees.

130

OOS

personnel. 2/ Island Creek Coal Company

a /Article 1A, Sect. (c) of the 1988

version of the NBCWA provides:

Supervisory emplyees shall perform

no Classified work covered by this

Agreement except in emergencies and

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 grievance

machinery and in such proceedings the

following rule will apply: The burden

is on the Employer to prove that

Classified work has bot been performed

by Supervisory personnel.

131

(Island Creek) and the _ International

Union, United Mine Workers of America;

District 28, United Mine Workers of

America; and Local Union 2232, United

Mine Workers of America (collectively

UMWA) have a history of disputes dating

to 1981 over Island Creek's performance

of classified work. In that year

Arbitrator Marlyn E. Lugar (Lugar)

arbitrated a grievance concerning the

performance of classified work at the

Virginia Pocahontas Number 5 Mine (the

Mine).3/ Finding that Island Creek

3/ Island Creek oversees several

mining operations in Virginia, including

the Virginia Pocahontas Number 5 Mine.

132

Violated the NBCWA's prohibition on

Classified work, Arbitrator Lugar

ordered Island Creek to cease and

desist. He intimated that "punitive

damages" might be appropriate in the

event of future violations.

In 1988, the Parties settled the

same type of grievance. Island Creek

agreed that it would stop its

Supervisory employees from performing

Classified work and would abide by

Arbitrator Lugar's 1981 decision. The

issue arose again in 1990 at the Mine.

Arbitrator Peter J. Judah (Judah)

restated Arbitrator Lugar's cease and

desist order and imposed punitive

133

damages of $2,000. 4/ Arbitrator Judah

emphasized that the punitive damages

were based on the 1988 settlement

agreement rather than on the NBCWA

itself.

On February 1, 1988, Island Creek

and UMWA entered into the present

version of the NBCWA. The 1988 NBCWA

contained a mandatory means for

resolving disputes arising under that

agreement: a three-step grievance

procedure followed, if necessary, by

final and binding arbitration. The

NBCWA does not expressly provide for an

award of punitive damages.

4/ Island Creek paid this punitive

award on July 23, 1991, apparently

without protest.

134

On or about November 13, 1991, one

of Island Creek's employees filed a

grievance alleging that a foreman had

violated the 1988 NBCWA by performing

Classified work. The parties ultimately

submitted the matter to arbitration

Pursuant to the terms of the NBCWA.

Arbitrator Bernard Hu. Cantor (Cantor)

reviewed the history of disputes at the

Mine. Determining that there had been

Similar violations and an earlier cease

and desist Order, he stated:

"If there is Something more than a

Straight forward Violation, if there is

@ pattern of repeated violations, then

there can and should be a mandate to

cease and desist. A cease and desist

Order itself, however, must be

135

enforceable. It does not require the

existence of a new contract, even though

Arbitrator Judah reached for that

further support for his decision. The

straightforward fact that the Company

had been ordered to stop [iS - 2s

sufficient to authorize the arbitrator

standing in the stead, as he does, of

courts of general jurisdiction for the

purpose of dealing with this contract,

to lay down a reasonable amount as a

rule constituting the imposition of a

penalty for violation of a prior order

of quasi-judicial body."

This is not “punitive damages" in the

tort sense. The application of that

term to damages given in this situation

is absolutely inappropriate. It is an

136

enforcement Penalty and it Stands as

such and is justified by the long

history within the Bituminous Coal

Industry contract. The contract has

grown over time as a way of life. To

those who live by it, there must be no

wrong without a remedy. Frustrations

have led to Cease and Desist orders.

Such an order means nothing unless it

can be enforced. The contract

contemplates effective enforcement.

A. 71). Arbitrator Cantor then issued

the following award:

(1) Grievant is allowed

Compensation for one-half a shift Pay at

Straight time.

(2) The Cease and Desist order

applicable to this mine entered by

Arbitrator Lugar, restated by Arbitrator

Judah, is here restated.

(3) A penalty for failure to obey

the Cease and Desist order, based on the

experience Since the Judah order is

hereby imposed in the amount of $1,000

to be paid to the Union. A. 14-75)

(Emphasis added).

After Arbitrator Cantor's award,

Island Creek brought an action in the

United States District Court for the

Western District of Virginia for

declaratory and injunctive relief

against the UMWA. Island Creek sought

to vacate the "enforcement penalty” of

$1,000 imposed by Arbitrator Cantor.

The UMWA filed a counterclaim seeking to

enforce the penalty. Finding that

138

Arbitrator Cantor exceeded the scope of

his authority in imposing the penalty,

the district court vacated that portion

of the award. The district court

enforced the other portions of the

arbitration award. District 28 appeals

from that portion of the order vacating

the penalty part of Arbitrator's

Cantor's decision.5/

The question of whether a labor

arbitrator exceeded the scope of his

5/ United Mine Workers of America,

Local 2232 (Local 2232) and

International Union, United Mine Workers

of America, are not Parties to this

a)peal.

139

authority is a question of law, Upshur

Coals Corp. v. United Mine Workers of

Am., Dist. 31, 933 F.2d 225, 228 (4th

Cie. i394) Therefore, in the instant

case, we review the district court's

ruling de novo. Id. We are required to

"stand in the shoes of the district

court" in determining whether Arbitrator

Cantor exceeded the scope of his

authority. Id.

An Arbitrator's award is entitled

to special judicial deference on

judicial review. Accordingly, federal

court's review of an arbitrator's award

under Sect. 301 of the Labor Management

Relations Act, 29 U.S.C. Sect. 185, is

very limited. United Steel Workers of

140

America v. Warrior & Gulf Naviaqation

363 U.S. 574, 581-82 (1960);

Cannelton Indus., Inc. v _ District 17,

United Mine Workers of Am., 951 F.2d

991, 593 (4th Cir. 1991). The parties

£o a collective bargaining agreement

bargained for the arbitrator's

interpretation, and "so far as the

arbitrator's decision concerns

construction of the contract, the courts

have no business overruling him because

their interpretation...is different from

his." United Steel Workers v.

Enterprise Wheel & Car Corp., 363 U.S.

293, 599» (1960). The arbitrator's

decision, however, "must draw its

essence from the contract and cannot

simply reflect the arbitrator's own

141

notions of industrial justice." United

Paper Workers Int'l Union v. Misco,

Inc., 484 U.S. 29, 38 (1987); Upshur

Coals, 933 F.2d at 229. Consequently,

"(a)n award may be overturned only if

the arbitrator must have based his award

on his own personal notions of right and

wrong, for only then does the award fail

to draw its essence from collective

bargaining agreement." Upshur Coals,

933 F.2d at 229 citing E.I. DuPont de

Nemours & Co. v. Grasselli Employees

Assoc., 790 F.2d 611, 614 (7th Cir.

1986) (citations omitted).

II!

Absent express provision in the

collective bargairing agreement, the law

of this circuit does not permit an

142

arbitrator to impose punitive award or

‘punitive damages. Cannelton Indus. ;

Norfolk ¢ wW. A RS Brotherhood of

Ry., Airline and Steamship Clerks, 657

F.2d 596, 602 (4th oe Se 1981);

Westinghouse Elec. Corp vy. Aerospace

Div. Vv. International Bhd. of Elec.

Workers, 561 F.24 521, 523-24 (4th Ciz.

1977), cert. denied, 434 U.g. 1036

(1978). We first addressed the issue of

Punitive awards in Westinghouse. There

the arbitrator found that the employer

had breached the agreement by failing to

Provide sufficient time for the parties

to negotiate a vacation shutdown

arrangement. Although no employees

suffered an economic loss as a result of

that breach, the arbitrator ordered the

143

employer to pay three additional days of

vacation. The contract did not contain

language permitting punitive damages.

On appeal, we vacated that portion of

the award, reasoning that "(t)hough

nominally compensatory, the award was

actually punitive. Because no provision

in the contract warranted this

punishment, the arbitrator exceeded his

jurisdiction." Id. at 523.

Likewise, we refused to uphold a

punitive award not provided for in the

collective bargaining agreement in

Baltimore Regional Joint Auth. Vv.

Webster Clothes, 596 F.2d 95 (4th Cir.

1979}4 In that case, the arbitrator

found that the employer had breached a

subcontracting restriction and ordered

144

the employer to pay $80,000 to the

grievants even though they had been

working full-time and suffered no actual

loss as a result of the breach.

Vacating the $80,000 payment portion of

the award, we reasoned that

"(t)he award of damages in the

Present case does not draw its essence

from the bargaining agreement, for the

agreement's essence does not comtemplate

punitive, but only compensatory

awards...In the absence of any provision

for punitive awards, and of any

substantiating proof of willful or

wanton conduct, an arbitrator may not

make an award of punitive damages for

breach of a collective bargaining

145

agreement." Baltimore Regional Joint

Bd., 596 F.2d at 98 6/

6/ It is unclear whether punitive

damages may be imposed in the absence of

a provision in the collective bargaining

agreement allowing punitive damages

where willful and wanton conduct is

present: "With respect to vacation

shutdowns, compensatory damages may be

awarded only when a breach of the

bargaining agreement causes a monetary

loss. In the absence of willful or

wanton conduct, punitive damages should

not be awarded.: Westinghouse, 561 F.2d

at 523. We need not decide whether an

arbitrator can issue a punitive award in

146

the face of wanton conduct only because

there is absolutely no evidence in the

record that Island Creek acted willfully

Or wantonly in this case. (J.A. 107).

Along a_e similar vein, language in

Baltimore Regional Joint Board referring

to willful and wanton conduct may have

created some confusion inasmuch as it

appears to imply that, in order to award

punitive damages, there must be (1) an

express provision in the bargaining

agreement and (2) willful and wanton

conduct. Our subsequent precedent,

however, has never endorsed the view

that both a Provision expressly allowing

Punitive damages and evidence of willful

and wanton conduct is necessary.

Cannelton Indus., 951 F.2d at 594;

Norfolk & W. Ry. Co., 657 F.2d at 602.

147

In Cannelton Industries, 951 F.2d

at 591, the collective bargaining

agreement did not provide for punitive

damages. The arbitrator in Cannelton

found that the employer had violated the

terms of a prior arbitration award that

required it to notify the union before

it hired an outside contractor. The

arbitrator proceeded to hold that, given

this violation, he was not required to

address the merits ofthe dispute over

whether the subcontracting actually

breached the substantive terms of the

collective bargaining agreement.

Finally, the arbitrator issued a

monetary award which the union

characterized as compensatory, and the

employer characterized as punitive.

148

This court, however, remanded the case

for a determination by the arbitrator as

to whether the subcontracting violated

the agreement "in any way justifying a

compensatory award." Id. at 595, We

reasoned as follows:

"a. is not clear from Basial's

Opinion whether he awarded money damages

because Cannelton violated the notice

requirements and the Volz award or

because Cannelton violated the NBCWA by

contracting out work that union

employees Should have performed. If

basial ruled for the former reason, as

Cannelton argues, the award is purely

punitive and it does not draw its

essence from the NBCWA. Cannelton at

Sense

594.

149

In the wake of this’ authority,

there is little doubt that the $1,000

award in this case is punitive.

Arbitrator Cantor awarded the individual

grievant compensation for invasion of

his work time. Entitlement of

compensatory damages for contract breach

rests on a party's suffering "some

legally cognizable loss, be it

manifestly monetary or measurable in

monetary terms." National Regional

Joint Bd. There is nothing in the

record establishing this award as

compensatory. Moreover, we regard as

further evidence of the punitive nature

of the award the fact that the $1,000

payment was to be made to Local 2232

rather than to any individual grievant.

150

As a result, the award issued by

Arbitrator Cantor is punitive. Because

the NBCWA contained no express provision

allowing the award of punitive damages,

the Punitive damage award issued by

Arbitrator Cantor did not draw its

essence from the collective bargaining

agreement, and therefore, cannot be

Sustained. Cannelton Indus., 951 F.24

at 594. 7/

7/ District 28 also attempts to

distinguish between punitive awards and

awards intended as a penalty. tI[t argues

that the award in the instant case of a

"Denalty" eather than "punishment." See

atio Union of Operating

- 450 v. adValley,

151

Footnote 7, cont.

Ine. , 347 F. Supp. 1104 (S.D. Tex.

1972); Sidney Wanzer & Sons, Inc., v.

Milk Drivers Union, 249 F. Supp. 664

(N.D. Ill. 1966). We cannot agree with,

and no cases in this circuit support,

District 28's distinction. A penalty

and punitive damages achieve the same

result. Punitive damages are imposed

not to compensate a plaintiff, but to be

"exemplary, punitive, or vindictive

damages (imposed) upon a defendant."

Pacific Mut. Life Ins. Co. v. Haslip,

499 U.S. 1, 16 (1991) (quoting Day v.

Woodworth, 54 U.S. 363 (1852). In the

instant case, Arbitrator Cantor awarded

the individual grievant conpensation for

152

200 gH

LT ENE TN OER eR SER PNY RN

Nevertheless, District 28 makes

several arguments in support of

Arbitrator Cantor's award. First,

District 28 argues that, once issued,

the arbitrator has the authority to the

FN 7, cont. invasion of his work

time, and no other actual damages were

shown. Therefore, although Arbitrator

Cantor considered the award nonpunitive,

it is in fact punitive. See

Westinghouse, 561 F.2d at 523-34;

Georgia Power Co. v. International Bhd.

of Elec. Workers, Local 84, 995 F.2d

1030, 1032 (11th Cir. 1993). An

arbitrator's denomination of an award as

compensatory will not prevent the court

from determining the award is in fact

punitive."), cert. denied, 114 S&S. Ct.

1644 (1994).

153

enforce a cease:and desist order. This

argument, however, circumvents the issue

in this case. The question here is not

whether an arbitrator can enforce a

cease and desist order, but whether he

can order punitive damages in the

absence of an express provision in the

collective bargaining agreement

permitting the award of punitive

damages. Case law in this circuit has

repeatedly held that an arbitrator may

not award punitive damages if the

collective bargaining agreement does not

expressly provide for such an award, and

we are not at liberty to disturb it.8/

8/ District 28 contends that our

recent decision in Peoples Sec. Life

Ins. Co. v. Monumental Life Ins. Co.,

a oe 141 (4th cir. 1993) alters Our

well-establisheq Precedent disallowing

any Punitive award unless expressly

Provided for in the Collective

bargaining agreement. We disagree, In

Peoples Sec. Life, we upheld an

arbitration award that included treble

damages. Unlike jin the instant Case,

however, the underlying arbitration

agreement in that case authorized the

arbitration Panel to Consider claims

under North Carolina's Unfair Trade

Practices Act, which Specifically

Permits an award of treble damages.

155

Second, District 28 argues that

Arbitrator Cantor's award should be

enforced even though NBCWA does not

provide for punitive awards. In support

of its contention, District 28 points to

decisions from other circuits allowing

punitive damages even though the

collective bargaining agreement did not

provide for such awards. See Lee v.

Chica, 983 F.2d 883 (8th Cir. 1993),

cert. denied, 114 S. Ct. 287 (1993);

Todd Shipyards Corp. v. Cunard Line,

Ltd., 943 F.2d 1056 (9th Cir. 1991);

Raytheon v. Automated Business Sys.,

Inc., 882 F.2d 6 (lst Cir. 1989); Bonar

v. Dean Witter Reynolds, Inc., 835 F.2d

1378 (llth Cir. 1988); Local 369, Bakery

& Confectionary Workers Int'l Union of

156

2 meme

Am., AFL-CIO v. Coston Baking Co., Inc.,

736 F.26@ i239 (Sth Cie. i979), cart.

denied, 423 U.S. 1055 (1976); Local 416,

Sheetmetal Workers Int'l Ass'n Vv.

Heigesteel Corp., 335 F. Supp. 812 (W.D.

Wis. 1971), rev'd on other grounds, 507

F.2d 1053 (7th Cir. 1974)." 9/

3/ District 28 argues that these

circuits allow an award of punitive

damages unless the collective bargaining

agreement specifically prohibits such an

award. Although District 28 argues that

the Sixth Circuit also allows punitive

damages in arbitration awards, it admits

that the status of such punitive awards

remains unclear in that circuit. See

Vv. ooks Foundry, Inc., 892

157

Regardless of the law in other

circuits, however, we have consistently

held that punitive damage awards are not

allowable unless expressly provided for

in the collective bargaining agreement.

See, e.g., Cannelton, 951 F.2d at 594.

Otherwise, the award “does not draw its

essence from the bargaining agreement."

ld. at 596 (Hamilton, J., dissenting).

F.2d 1283, 1286-90 (6th Cir. 1990).

Island Creek agrees that the Fifth and

Eleventh Circuits allow a punitive award

unless specifically prohibited by the

agreement; however, Island Creek

contends. that the First, Sixth, Seventh,

Eighth, and Ninth Circuits look to the

collective bargaining agreement to

determine if punitive damages have been

authorized.

156

eet

aiid eee ee

In Summary, we hold Chat an

arbitrator cannot award punitive damages

where the collective bargaining

agreement does not specifically so

provide. Accordingly, the Judgment of

the district court is affirmed.

159

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