Dickenson-Russell Coal Co. v. International Union, United Mine Workers

840 F. Supp. 2d 961, 2012 WL 9674, 2012 U.S. Dist. LEXIS 114
CourtDistrict Court, W.D. Virginia
DecidedJanuary 3, 2012
DocketCase No. 2:11CV00023
StatusPublished

This text of 840 F. Supp. 2d 961 (Dickenson-Russell Coal Co. v. International Union, United Mine Workers) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickenson-Russell Coal Co. v. International Union, United Mine Workers, 840 F. Supp. 2d 961, 2012 WL 9674, 2012 U.S. Dist. LEXIS 114 (W.D. Va. 2012).

Opinion

OPINION

JAMES P. JONES, District Judge.

The issue in this case is the enforceability of a labor arbitrator’s award that directed reinstatement of a coal mine employee who was fired under a “zero-tolerance” drug policy after testing positive for marijuana use. The arbitrator found mitigating circumstances, including that the longtime employee had no prior history of illegal drug use. Because the drug policy did not require termination as the only possible punishment and reinstatement does not violate public policy, I will uphold the award.

I

Dickenson-Russell Coal Company, LLC (“Dickenson-Russell”) filed this action pursuant to section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185 (West 1998), seeking to overturn a labor arbitration award that reinstated its employee Robert Gilbert. The International Union, United Mine Workers of America (the “Union”) filed a Counterclaim seeking enforcement of the award.1 The Union also seeks attorneys’ fees and prejudgment interest on Gilbert’s lost wages. The parties have filed cross motions for summary judgment, which have been fully briefed and are ripe for decision.

The record of the proceedings before the arbitrator has been filed.2 That record shows the following uncontested facts.

Dickenson-Russell is a corporation engaged in the business of mining coal. It operates the Cherokee Mine located in this judicial district. Dickenson-Russell and [964]*964the Union are parties to a collective bargaining agreement called the 2010 New Virginia Operations Wage Agreement (the “Wage Agreement”). The Wage Agreement vests control of “[t]he management of the mine, the direction of the working force and the right to hire and discharge” exclusively with Dickenson-Russell. (Ex. 1 at 4.) However, any discharge must be supported by just cause. (Id. at 146.) Discharges are subject to final arbitration (id. at 148) and the burden is on Dickenson-Russell to establish grounds for the discharge (id. at 146).

Dickenson-Russell adopted a written Drug and Substance Abuse Policy for UMWA Represented Employees (the “Drug Policy”) in 2006. The Drug Policy notes the hazardous nature of the coal mining industry and explains that an employee “who comes to work after using drugs or alcohol, or is impaired by drugs and alcohol while on the job” poses a danger to themselves and their co-workers. (Ex. 2 at 1.) The Drug Policy states that Dickenson-Russell has

zero tolerance for the use, consumption, being under the influence of, manufacture, possession, sale, distribution, or transfer of alcohol, mind or behavior altering substances, illegal Controlled Substances, the possession of associated paraphernalia or the misuse of prescription drugs.

(Id. (emphasis in original).) The Drug Policy also provides for random drug testing and states that a positive test above or equal to the “cut-off levels” set forth establishes a “conclusive presumption that the Employee reported to work impaired and in an unfit condition and/or under the influence of drugs or alcohol.” (Id. at 4 (underlining omitted).) Further, the Drug Policy makes no distinction between passive or secondhand inhalation of marijuana smoke and warns employees that marijuana can be detected 30 or more days after use. Finally, the Drag Policy states that a positive finding shall subject the employee “to disciplinary action, up to and including suspension with intent to discharge.” (Id. at 7.)

After the Drug Policy went into effect and prior to Gilbert’s termination, three employees at the Cherokee Mine tested positive for drags and each was terminated.3 The Union did not arbitrate any of these terminations.4

Gilbert has worked in the coal industry for 32 years and started at DickensonRussell in 2003. He was supervised by Mine Superintendent Michael Ohlson, for whom he had previously worked at another mine. His work involved electrical and mechanical repair and was “safety sensitive.” (Award 8.) He had no prior disciplinary record. He was aware of the Drag Policy.

On September 23, 2010, Gilbert was playing poker with two friends when one of them produced a marijuana cigarette. Although he had not smoked marijuana since high school, Gilbert “toked it” twice.5 [965]*965(Tr. at 56.) After the poker game, Gilbert went home and went to bed. As his luck would have it, at work the next day, September 24, 2010, Gilbert was subjected to a random drug test, his fourth such test that year. This time he failed, testing positive for eannabinoids.6 Gilbert was suspended with the intent to discharge and, pursuant to Virginia law, Dickenson-Russell reported the positive test to the Virginia Department of Mines, Minerals and Energy and Gilbert’s mine certifications were suspended.7 Gilbert grieved the decision but after two additional meetings, the company management decided to uphold it and Gilbert was fired.

The Union disputed Gilbert’s discharge and an arbitration hearing pursuant to the Wage Agreement was held on February 7, 2011, before arbitrator M. David Vaughn. In a lengthy written decision dated April 7, 2011, the arbitrator found that DickensonRussell’s rules of conduct, including the Drug Policy, were reasonable. He further found that although Dickenson-Russell had just cause to discipline Gilbert, it did not have such cause to terminate him. The arbitrator reasoned that although Gilbert clearly violated the Drug Policy, that policy provides that an employee who violates it will be subject “to disciplinary action up to and including suspension with intent to discharge,” which language does not require termination for every violation.

Although the arbitrator considered Dickenson-Russell’s argument that its past practice of termination informed the meaning of the “zero-tolerance” Drug Policy, he concluded that the “up to and in-eluding” language of the policy was clear and unambiguous. He further found that just cause required Dickenson-Russell to consider mitigating circumstances. The arbitrator then reviewed the evidence and concluded that consideration of the mitigating circumstances required a punishment other than termination.

As the arbitrator wrote,

I take note of the fact that eight years of service — with an absolutely clean work record — is not inconsequential. However, I also take note of the fact that Grievant’s work history also includes years of work with Superintendent Ohlson at Jewell Ridge. There is nothing in the record to indicate that their prior interactions, and Grievant’s employment record, were anything but positive.
Although it is undisputed that mining is a hazardous occupation and that the Company’s zero tolerance Drug Policy serves to reduce potential hazards, I also take note of the fact that Grievant testified, without contradiction, that he only took two puffs of the marijuana cigarette, that he had not used marijuana since he was in high school, that many hours passed between his drug use and his work at the mine and that he took and passed many drug tests prior to September 24, 2010, and a number of tests subsequently.

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Related

United Steelworkers v. American Manufacturing Co.
363 U.S. 564 (Supreme Court, 1960)
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Cite This Page — Counsel Stack

Bluebook (online)
840 F. Supp. 2d 961, 2012 WL 9674, 2012 U.S. Dist. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickenson-russell-coal-co-v-international-union-united-mine-workers-vawd-2012.