The Monongalia County Coal Company v. United Mine Workers of America, International Union et al

Filing 20

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 13 ) AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 15 ). The Court DENIES the Unions motion for summary judgment (dkt. no. 13 ), GRANTS the Companys motion for summary judgment (dkt. no. 15 ), VACATES the Arbitrators award, with prejudice and ORDERS this case stricken from the Courts active docket. The Clerk is directed to enter a separate judgment order in this matter. Signed by Judge Irene M. Keeley on 2/16/17. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MONONGALIA COUNTY COAL COMPANY
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV04
(Judge Keeley)

UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION and
UNITED MINE WORKERS OF AMERICA, LOCAL UNION 1702
Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
Pending

for

consideration

are

cross

motions

for

summary

judgment filed by the plaintiff, Monongalia County Coal Company
(“Company”), and the defendants, United Mine Workers of America,
International Union and United Mine Workers of America, Local Union
1702 (collectively “Union”). Finding that the Arbitrator’s decision
fails to draw its essence from the collective bargaining agreement
and instead reflects the Arbitrator’s own notions of right and
wrong, the Court grants the Company’s motion (dkt. no. 15) and
VACATES the Arbitrator’s award.
I. FACTUAL BACKGROUND
The Company operates the Monongalia County Mine (the “Mine”),
an underground coal mine located in West Virginia and Pennsylvania.
The

Union

represents

the

Company’s

bargaining

unit

(union)

employees for purposes of collective bargaining. The Company and
the Union are bound by a collective bargaining agreement (“CBA”)

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
(dkt.

no.

7-1)

that

governs

the

wages,

hours,

and

working

conditions of union employees at the Mine.
In 2015, the Company contracted with a third-party, Jennchem,
to design, supply, and install a pumpable crib system1 in the Mine.
This system requires workers to hang cylindrical bags from bolts
installed in the mine roof at predetermined locations. The bags are
then filled with a cementitious mixture, which dries quickly and
forms a strong concrete-like pillar that provides support to the
ceiling of the mine.
At the outset, union mine employees hung the bags and Jennchem
employees filled them with the cement mixture. After problems arose
with the bag hanging performed by the union employees, however, the
Company

decided

that,

because

of

Jennchem’s

familiarity

and

expertise with the product, Jennchem should perform the entire
operation. When the Union objected, the Company countered that it
was allowed to contract all of this work out to Jennchem under

1

“Cribbing” is used to support the ceiling of a mine.
Traditionally, cribbing consisted of multiple layers of wood
stacked in a box-like formation from the ground to the roof. Modern
advances, however, have provided other forms of cribbing, including
hydraulics, mechanical jacks, or concrete-like pillars, such as
the ones at issue here.
2

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
Article 1A, § (i) of the CBA.

This Article provides in pertinent

part as follows:
All construction of mine or mine related facilities
including the erection of mine tipples and the sinking of
mine shafts or slopes customarily performed by classified
Employees
of
the
Employer
normally
performing
construction work in or about the mine in accordance with
prior practice and custom, shall not be contracted out at
any time unless all such Employees with necessary skills
to perform the work are working no less than 5 days per
week, or its equivalent for Employees working alternative
schedules.
(dkt. no. 14 at 4).
The Company justified its decision to contract out the bag
hanging to Jennchem based on the fact that, pursuant to Article 1A
§ (i), all union employees involved were working five days per
week. The Union disagreed, arguing that, because hanging the bags
was work previously performed by union workers, its members had
suffered a loss of work. After the parties were unable to resolve
the matter through the grievance process, the matter was referred
for resolution to Arbitrator Betty Widgeon (“Arbitrator”).
II. PROCEDURAL BACKGROUND
On July 10, 2015, the Arbitrator conducted a hearing with the
parties at which the Company presented two arguments.

It first

contended that the installation of the pumpable crib bags was

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1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
construction work under Article 1A, § (i) of the CBA.

It next

asserted that, because the Mine’s union employees were working no
less than five days per week, it was free to contract that work to
Jennchem. Although the Union did not dispute that its members were
working no less than five days per week, it contended the work
involved was “maintenance” work under Article 1A, § (g)(2),2 which
required the Company to use only union workers. Thus, it reasoned
that, even if all union members were already working a full work
schedule, the maintenance work would have resulted in overtime and
additional payments into the employees’ benefit fund.

2

Article 1A, § (g)(2), provides in pertinent part:
Repair and Maintenance Work - Repair and maintenance work
of the type customarily performed by classified Employees
at the mine or central shop shall not be contracted out
except (a) where the work is being performed by a
manufacturer or supplier under warranty, in which case,
upon written request on a job-by-job basis, the Employer
will provide to the Chairman of the Mine Committee a copy
of the applicable warranty or, if such copy is not
reasonably
available,
written
evidence
from
a
manufacturer or a supplier that the work is being
performed pursuant to warranty; or (b) where the Employer
does not have available equipment or regular Employees
(including laid-off Employees at the mine or central
shop) with necessary skills available to perform the work
at the mine or central shop.
Dkt. no. 14-1 at 4.
4

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
The Arbitrator rendered a decision (“Decision”) favorable to
the Union on August 31, 2015.

She found that the Company had

violated the CBA by using Jennchem to complete bargaining unit work
(dkt.

no.

4).

Specifically,

her

Decision

concluded

that

the

“installation of pumpable cribs does not fall into the construction
exception, and because it is, at the very least, repair and
maintenance work, it is Union work.” Dkt. no. 4 at 4. The Decision
also required the Company to cease and desist using outside
contractors to hang the bags, and awarded the Union compensatory
damages for the hours billed by Jennchem. Id.
Following the Decision, a dispute arose concerning the formula
to be used in determining the amount of damages to be paid by the
Company (dkt. no. 14-1). After additional briefing, the Arbitrator
issued a Supplemental Decision, accepting the Union’s position and
basing her award of the hours due on the calculations and estimates
supplied by the Union (dkt. no. 4-1). Accordingly, she ordered the
Company to compensate the Union for 3,000 labor hours connected to
the bargaining unit work performed by Jennchem. Id.
The Company filed suit against the Union on January 8, 2016
(dkt. no. 1). Its complaint challenges the Arbitrator’s Decision on
the basis that it 1) exceeded the scope of the Arbitrator’s
5

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
authority and power; 2) failed to draw its essence from the
Agreement; 3) was based on the Arbitrator’s own notions of right
and wrong; 4) was arbitrary and capricious; and 5) conflicted with
public

policy

interests

by

undermining

enforcement

of

the

Agreement. As a remedy, it sought to vacate the Arbitrator’s award
with prejudice.
The Union filed a combined answer and counterclaim on February
17, 2016, challenging the Court’s jurisdiction to vacate the award
because the Agreement provides for final and binding arbitration as
the sole means of resolving disputes arising under the Agreement
(dkt. no. 7). Its counterclaim seeks a declaration that the award
is final, binding, and enforceable.

It also asks the Court to

compel enforcement of the award and to permanently enjoin the
Company

from

utilizing

third-party

contractors

in

any

manner

inconsistent with the Agreement.
Both parties have moved for summary judgment (dkt. nos. 13 and
15), and those motions are fully briefed and ripe for review.
III. LEGAL STANDARD
A.

Summary Judgment
Summary

documents,

judgment

is

electronically

appropriate
stored
6

where

the

information,

“depositions,
affidavits

or

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
declarations,

stipulations

.

.

.

,

admissions,

interrogatory

answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist
sufficient to prevent judgment as a matter of law.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

nonexistence of genuine issues of fact.

and

of

establishing

the

Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
7

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
evidence

must

be

such

that

a

rational

reasonably find for the nonmoving party.
B.

trier

of

fact

could

Id. at 248–52.

Judicial Review of Arbitration Awards
Judicial review of arbitration awards is “among the narrowest

known to the law.” PPG Indus. Inc. v. Int’l Chemical Workers Union
Council of United Food and Comm’l Workers, 587 F.3d 648, 652 (4th
Cir. 2009) (internal citations omitted). Arbitration awards are
presumptively valid. Mountaineer Gas Co. v. Oil, Chem. & Atomic
Workers Int’l Union, 76 F.3d 606, 608 (4th Cir. 1996). This is
because the parties to a CBA “bargained for the arbitrator’s
interpretation and resolution of their dispute.” Id. Consequently,
courts generally defer to the arbitrator’s reasoning and should not
overturn their factual findings unless there has been fraud by the
parties or dishonesty by the arbitrator. Id. Indeed, “as long as
the arbitrator is even arguably construing or applying the contract
and acting within the scope of his authority, that a court is
convinced he committed serious error does not suffice to overturn
his

decision.”

PPG

Indus.,

587

F.3d

at

652

(quoting

United

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).
Nevertheless, courts should overturn arbitration awards when
the “award violates well-settled and prevailing public policy,
8

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
fails to draw its essence from the collective bargaining agreement
or reflects the arbitrator’s own notions of right and wrong.”
Mountaineer, 76 F.3d at 608 (citing Misco, 484 U.S. at 38). Thus,
an “arbitrator cannot ‘ignore the plain language of the contract’
to impose his ‘own notions of industrial justice.’” PPG Indus., 587
F.3d at 652 (quoting Misco, 484 U.S. at 38).
A court’s review “must determine only whether the arbitrator
did his job — not whether he did it well, correctly, or reasonably,
but simply whether he did it.” Mountaineer Gas, 76 F.3d at 608.
This

determination

requires

the

Court

to

examine:

“(1)

the

arbitrator’s role as defined by the Agreement; (2) whether the
award ignored the plain language of the Agreement; and (3) whether
the arbitrator’s discretion in formulating the award comported with
the essence of the Agreement’s proscribed limits.” Id. (citing
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363
U.S. 593, 597 (1960)).
Moreover, when construing the contract, “the arbitrator must
take into account any existing common law of the particular plant
or

industry,

for

it

is

an

integral

part

of

the

contract.”

Clinchfield Coal Co. v. District 28, United Mine Workers of America
& Local Union No. 1452, 720 F.2d 1365, 1368 (4th Cir. 1983)
9

MONONGALIA CTY. COAL CO. V. UMWA

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
(quoting Norfolk Shipbuilding and Drydock Corp. v. Local No. 684 of
the Int’l Brotherhood of Boilermakers, 671 F.2d 797, 800 (4th Cir.
1982)). Finally, “[t]he ‘basic objective’ of a reviewing court in
the arbitration context is ‘to ensure that commercial arbitration
agreements, like other contracts, are enforced according to their
terms, and according to the intentions of the parties.’” PPG
Indus., 587 F.3d at 654 (quoting First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 947 (1995)).
IV. DISCUSSION
The material facts in this case are not in dispute. The
parties either agree or concede that the work of hanging the bags
was

previously

performed

by

union

employees,

and

that

those

employees were working no less than five days per week during the
relevant time period. The Company assigns two legal errors to the
Arbitrator’s Decision. First, it asserts that the Decision ignores
the plain language of the CBA, as well as the “common law of the
shop.”

Second,

it

contends

that

the

damages

awarded

in

the

Supplemental Decision are arbitrary and capricious, and based on
her own sense of fairness or equity. The Union argues that, under
the CBA, the parties agreed to be bound by the Arbitrator’s
decision, and further argues that legal precedent requires courts
10

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
to give arbitrators great deference and only overturn their awards
in the most limited of circumstances, none of which they contend
are present in this case.
A.

The Arbitrator’s Decision That The Work Was Not Construction
Cognizant of the very limited circumstances under which it may

overturn an arbitration award, this Court still must do so if the
award “fails to draw its essence from the collective bargaining
agreement.” Mountaineer Gas, 76 F.3d at 608. In determining whether
the Arbitrator did her job, the Court must determine “whether the
award ignored the plain language of the Agreement.” Id.
The question presented is whether the work of hanging the bags
was construction work or repair and maintenance work. Under the
CBA, if the work was construction, the Company was free to contract
it to Jennchem because union employees were working no less than
five days per week. See Dkt. no. 14-1 at 5. If, however, the work
was repair and maintenance, it belonged solely to the union
employees, with limited exceptions that are not present in this
case. See Dkt. no. 14-1 at 4. Because union employees were working
no less than five days per week, the Union contended that hanging
the bags was repair and maintenance work.

11

MONONGALIA CTY. COAL CO. V. UMWA

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
In order to determine whether the work was construction or
maintenance,

the

Arbitrator

necessarily

had

to

construe

the

relevant language of the CBA, which does not explicitly categorize
the

work

submitted

at

issue.

multiple

In

support

prior

of

arbitral

its

position,

decisions,

the

Company

which

defined

construction as “the creation of something new that had not existed
before” (dkt. no. 4 at 4). Thus, “because the pumpable cribs were
being erected and placed where there previously was nothing,” the
Company argued that “there is nothing to maintain” and the work
“can only ever be viewed as construction.” Id.
The entirety of the Arbitrator’s reasoning rejecting this
argument and concluding that the work was maintenance and repair
work, not construction, is contained in a single paragraph of her
Decision

(dkt.

no.

4

at

4).

Disagreeing

with

the

Company’s

characterization of the work, she found that, “[i]n the places
where the pumpable cribs are being erected, there was previously
something there: coal.” Id. That coal “kept the ceiling of the mine
from collapsing.” Id.

She credited the Union’s argument that,

“with the removal of the coal, various measures were put into
effect to keep the ceiling stable and that the installation of
these cribs was one of those measures.” Id. The Arbitrator did not
12

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
“view[] each installation . . . as an individual construction
project or even as a part of a larger construction project but as
steps taken to maintain the integrity and stability of the mine
ceiling.” Id.
The words “construction” and “repair and maintenance” have
distinct and clear definitions in the context of this case. To
“construct” means “[t]o form by assembling or combining parts;
build.”3 To “maintain,” on the other hand, has two plausible
definitions that could apply to this case: either “[t]o keep in an
existing state; preserve or retain” or “[t]o keep in a condition of
good repair or efficiency.”4 As the Company noted, and the arbitral
precedent it cited confirms, in this context, the common usage of
“repair

and

maintenance”

refers

to

the

upkeep

of

equipment,

3

See
Construct,
American
Heritage
Dictionary,
https://ahdictionary.com/word/search.html?q=construct.
Interestingly, Black’s Law Dictionary (6th Ed. 1998) explicity
differentiates between the two terms, as it defines “construct”
thusly:
To build; erect; put together; make ready for use. To
adjust and join materials, or parts of, so as to form a
permanent whole. To put together constituent parts of
something in their proper place and order. “Construct” is
distinguishable from “maintain,” which means to keep up,
to keep from change, to preserve.
4

See
Maintain,
American
Heritage
Dictionary,
https://ahdictionary.com/word/search.html?q=maintain.
13

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
machinery, or existing facilities.5 Indeed, the language of the
CBA’s clause covering repair and maintenance work supports such a
finding, as it strongly suggests that it applies to machinery or
equipment, and twice references that the repair or maintenance work
might be performed in the “central shop.” See Dkt. no. 14-1 at 4.
Despite the fact that the plain language of the CBA appears
clear, the Arbitrator may have found some ambiguity, although she
did not explicitly say so. See PPG Indus., 587 F.3d at 654 (noting
that courts should not second-guess an arbitrator’s finding of
ambiguity). The Court recognizes that “construing or applying the
contract”

is

generally

within

the

exclusive

purview

of

the

Arbitrator. See PPG Indus., 587 F.3d at 652.
Nevertheless, had the Arbitrator found some ambiguity in the
contract, she was not at liberty to impose her “own notions of
industrial justice.” Id. (quoting Misco,

484 U.S. at 38). Rather,

she was obligated to look to the “existing common law of the
particular plant or industry, for it is an integral part of the

5

See, e.g., Case No. D-971AI-9, Consol-McElroy Coal Co. and
UMWA Local Union 1638, District 6, at 11-12 (Dec. 3, 1997)
(Nicholas, Arb.) (“On the other hand, repair and maintenance that
is work which — by definition — involves repairing existing
equipment or servicing machinery or facilities in order to keep
them in good working order.”) (dkt. no. 18-1 at 96-97).
14

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
contract.” Clinchfield Coal, 720 F.2d at 1368 (quoting Norfolk
Shipbuilding, 671 F.2d at 800).
The Company provided the Arbitrator with numerous arbitral
decisions

defining

construction

work,

including

several

that

specifically concluded installation of roof support systems, such
as the pumpable crib pillars at issue, was construction work, not
repair or maintenance.6 Some of those decisions also held that the
definition of construction in the coal industry was a matter of res
judicata.7

The union provided no contrary precedent, and the

Arbitrator cited none.8

6

The list of cases provided by the Company in support is quite
lengthy and need not be fully cited here. Those cases are collected
at dkt. no. 18 at 13-14 n. 3; dkt. no. 18-1 at 1-108; dkt. no. 18-2
at 1-103; dkt. no. 16-2 at 8-54. These decisions are important in
the instant case not only because they discuss the definition of
construction work, but also for their precedential value.
7

See, e.g., Case No. D-20001AG-11, ARB No. 98-06-99-0258,
McElroy Coal Co. v. Local Union 1638, District 6 (July 17, 2000)
(Harr, Arb.) (finding that definition of construction within
industry was matter of res judicata); Case No. D-881AI-2, ARB No.
84-2-87-146, Greenwich Collieries Co. v. UMWA Local Union 1609,
District 2,(Jan. 15, 1988) (Joseph, Arb.) (finding “arbitral
consensus” that when new items are installed it constitutes
construction).
8

In point of fact, in a previous arbitration, the Union had
conceded that installation of pumpable crib pillars was
construction work. Dkt. No. 18-1 at 34, 42.
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
Those past arbitral decisions clearly define the differences
between construction and repair and maintenance work. Indeed, for
decades arbitrators have concluded that
[i]n the usual sense, construction work . . . is work
which brings something new to the mine which had not
existed prior to the performance of the work in question.
On the other hand, repair and maintenance that is work
which — by definition — involves repairing existing
equipment or servicing existing machinery or facilities
in order to keep them in good working order. Generally
speaking, repair and maintenance work does not involve
introducing new material into the mine or the erection or
fabrication of facilities which have not previously been
part of the mine facilities.
Consol-McElroy Coal Co. v. UMWA Local Union 1638, District 6, Case
No. D-971AI-9,(Dec. 3, 1997)(Nicholas, Arb.); see also, Consol McElroy Coal Co. v. UMWA Local Union 1638, District 6, Case No.
D-971AI-8,(Sept. 22, 1997)(Hammer, Arb.) (noting that repair and
maintenance generally refers to the upkeep or restoration of
equipment and machinery, while construction involves erecting,
fabricating or installing mine or mine related facilities).
Several arbitral decisions specifically address whether roof
supports are construction work. In Consol-Consol-McElroy Coal Co.
v. UMWA Local Union 1638, District 6, Case No. D-971AI-9,(Dec. 3,
1997) (Nicholas, Arb.), for example, Arbitrator Samuel Nicholas
held that the installation of steel arches to support the roof of
16

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
a mine was construction work.

Finding that the steel arches had

never been present in the mine prior to their installation, he
concluded that their installation constituted construction work.
Id.
Arbitrator Nicholas used the same reasoning in another case in
which he decided that installation of supplemental roof supports,
specifically, “pizza jacks,” was construction work rather than
maintenance work. Pittsburg & Midway Coal-North River Mine v. UMWA
Local Union 1926, District 20, Case No. D-20051AI-5 (Oct. 12, 2005)
(“Clearly, and as other arbitrators have said, you cannot repair
something into existence.” (citing Island Creek Coal Co., Hamilton
#2 Mine, 84-23-87-49-ICC at 9 (1997) (Phelan, Arb.))).
Several

arbitral

decisions

specifically

address

the

installation of concrete roof support pillars using collapsible
forms hung from the ceiling similar to the pumpable crib bags used
by the Company in this case. In one such case, Arbitrator Lynn
Wagner found that hanging the collapsible forms was a component of
the concrete pillar installation process, and thus

construction

work. Consol-Loveridge Mine v. UMWA Local 9909 in District 31, Case
No. D-20081AG-1 (Mar. 3, 2008) (Wagner, Arb.) (also noting that
“the Arbitrator lacks the contractual authority to ignore such
17

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
binding ARB decisions and to, in effect, rewrite the Contract to
conform with the Union’s position”).
Finally, in a decision directly on point, Arbitrator Elliot
Shaller addressed a grievance over the identical pumpable crib bags
installed by the same contractor involved here.9

The decision in

The Marshall Cty. Coal Co. v. United Mine Workers of America, Local
1638, Case No. 11-31-15-101 (July 27, 2015) (Shaller, Arb.), began
by acknowledging the “ample arbitral precedent . . . construing the
term [‘construction’] in a uniform way.” Id. at 18. Arbitrator
Shaller

reiterated

the

definition

of

construction

work

as

“involving the erection, fabrication or installation of new mine or
mine-related facilities or additions,” and noted in its distinction
from repair and maintenance work. Id.

He also recognized that the

industry’s definitions and distinctions were “so well settled that
in a case involving this mine Arbitrator Don Harr ruled that the
prior authority required him to apply the principle of arbitral res
judicata pursuant to ARB 78-24 (February 19, 1980.)” Id. at 14.
9

The facts in the Marshal Cty. Coal case are on all fours with
the facts in this case. Nonetheless, Arbitrator Widgeon refused to
address it because, although the Company submitted the decision to
her on July 27, 2015, she stated that she had closed the record
earlier that same day. Nonetheless, it is persuasive in its
reasoning, and informative in its compilation of prior arbitral
precedent, which was clearly available to the Arbitrator.
18

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
After discussing much of the same precedent cited by the Company in
this case, he concluded that the “installation of permanent roof
control support in an area in which it did not exist . . . mak[es]
it ‘construction.’” Id. at 23.
These decisions establish that, under the “industrial common
law — the practices of the industry and the shop — [which] is
equally a part of the collective bargaining agreement although not
expressed

in

it,”

the

work

in

question

in

this

case

was

construction work. United Steelworkers of America v. Warrior & Gulf
Nav. Co., 363 U.S. 574, 581-82 (1960); see also Clinchfield Coal
Co. v. District 28, United Mine Workers of America, 556 F.Supp.
522, 530 (D.C.Va. 1983), aff’d, 730 F.2d 1365 (4th Cir. 1983)
(citing Warrior & Gulf); Clinchfield Coal Co. v. UMWA, Dist. 28,
567 F. Supp. 1431, 1434 (W.D. Va. 1983), aff’d, 736 F.2d 998 (4th
Cir.

1984)

(applying

principle

that

past

decisions

by

the

Arbitration Review Board under the National Bituminous Coal Wage
Agreements constituted part of the common law of the shop).
Certainly, by ignoring this overwhelming precedent, if not the
plain language of the CBA, the Arbitrator substituted her own
“notion of industrial justice” when she concluded, without any
support beyond the Union’s argument, that the installation of the
19

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
pillars was maintenance of the roof rather than construction of
something new brought into the mine. Indeed, her conclusion that
“there

was

previously

something

there:

coal”

contradicts

the

prevailing definition in the coal industry that construction work
entails “bringing something to the mine that was not there before.”
Dkt. no. 4 at 4.
Not only does her conclusion misread the arbitral precedent,
it is illogical. The defining characteristic of construction work
is not whether there was something previously in the location of
the construction, but whether the construction “brings something
new to the mine which had not existed prior to the performance of
the work in question.” See Consol-McElroy Coal Co., Case No.
D-971AI-9. Moreover, by concluding that work cannot be considered
construction where coal previously was located, the Arbitrator
effectively rendered all work below the surface to be repair and
maintenance work — regardless of its true nature.10

10

Nor does the Arbitrator’s conclusion that the installation
of the pumpable crib pillars was maintenance of the roof make
practical sense. One could not credibly argue that an underground
pipe is maintaining the earth above it, or that the foundation
walls of a building are maintaining the earthen walls surrounding
it. Of course, deeming the work maintenance was the only way the
Union could have recovered given its concession that
union
employees were working no less than five days per week.
20

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
Clearly, the installation of the pumpable crib bags, indeed
the installation of the finished support pillars in toto, is
construction work.

Not only does this conclusion comport with the

overwhelming arbitral precedent and the plain language of the CBA,
and is consistent with the Court’s objective of “ensur[ing] that
commercial

arbitration

agreements,

like

other

contracts,

are

enforced according to their terms, and according to the intentions
of the parties.” PPG Indus., 587 F.3d at 654 (quoting First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947 (1995)).
Past arbitral decisions, which are “equally a part of the
collective bargaining agreement although not expressed in it,”
remove any doubt that the work in question here was construction
work. United Steelworkers of America v. Warrior & Gulf Nav. Co.,
363 U.S. 574, 581-82 (1960).

To allow the Arbitrator to ignore

such consistent arbitral precedent would eviscerate the holdings of
Warrior & Gulf and Clinchfield that explicitly incorporate such
precedent into the CBA. 363 U.S. at 581-82; 556 F.Supp. at 530
Because the arbitral precedent forms the common law of the shop,
which necessarily is part of their CBA, the parties should be able
to rely on such precedent to guide their actions, which is exactly
what the Company did in this case. See id. at 582.
21

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
In conclusion, despite the extremely narrow scope of judicial
review of arbitration decisions, the Arbitrator’s Decision in this
case “fail[ed] to draw its essence from the collective bargaining
agreement,” instead “reflect[ing] the arbitrator’s own notions of
right and wrong.” Mountaineer, 76 F.3d at 608 (citing Misco, 484
U.S. at 38). Accordingly, the Court VACATES the Arbitrator’s award
WITH PREJUDICE.
B.

The Damages Award in the Arbitrator’s Supplemental Decision
Having concluded that the work at issue was construction work,

the Court need not decide whether the amount of damages calculated
in the Arbitrator’s Supplemental Decision (dkt. no. 4-1) was
arbitrary or capricious. Nonetheless, because the Company has
presented this argument in its motion for summary judgment, the
Court will turn briefly to the issue.
Had the work in question been maintenance work, it would have
been under the exclusive jurisdiction of the union employees, and
the Arbitrator would have been fully within her authority to award
the damages she did. See Brown & Pipkins, LLC v. Service Employees
Int’l Union, 2017 WL 280733, at *7 (4th Cir. 2017) (noting that “we
give arbitrators wide latitude to formulate remedies” (citing
Enterprise Wheel, 363 U.S. at 597)). This includes her finding
22

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
that, even though the employees were working five days a week, they
would have been able to procure overtime to perform the work. See
Consolidation Coal Co. v. United Mine Workers of America Dist. 31,
Local Union 1702, 2013 WL 4758601, at *5 (N.D.W.Va. 2013) (noting
that it was “within the scope of the arbitrator’s authority” to
award

damages,

including

finding

that

the

work

would

have

eventually been done by union employees on overtime).
Therefore, to the extent it was necessary for the Arbitrator
to calculate an award of damages to the Union, which the Court
concludes

it

was

not,

the

Arbitrator’s

Supplemental

Decision

clearly weighed the competing labor time estimates and, regardless
of whether there may have been a more accurate formula, her
calculation should remain undisturbed. Had the work in question
actually been repair or maintenance, the amount of the Arbitrator’s
award would have drawn its essence from the CBA, and there would be
no basis to overturn the calculation. See Baltimore Regional Joint
Bd. v. Webster Clothes, Inc., 596 F.2d 95, 98 (4th Cir. 1979)
(“[The Arbitrator’s] award is legitimate only so long as it draws
its essence from the collective bargaining agreement . . . .”
(quoting Enterprise Wheel, 363 U.S. at 597)).
V. CONCLUSION

23

MONONGALIA CTY. COAL CO. V. UMWA

1:16CV4

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13] AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 15]
For the reasons discussed, the Court DENIES the Union’s motion
for summary judgment (dkt. no. 13), GRANTS the Company’s motion for
summary judgment (dkt. no. 15), VACATES the Arbitrator’s award, and
ORDERS this case stricken from the Court’s active docket.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: February 16, 2017
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

24