James L. DAVIS v. KITT ENERGY CORP. KITT ENERGY CORP. v. James L. DAVIS and West Virginia Coal Mine Health & Safety Board of Appeals.
No. 17668
Supreme Court of Appeals of West Virginia
Dec. 21, 1987
365 S.E.2d 82
Dissenting Opinion Jan. 28, 1988.
We find persuasive the language of the Supreme Court in John Wiley, supra:
Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. . . . It would be a curious rule which required that intertwined issues of ‘substance’ and ‘procedure’ growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. . . .
Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. . . .
376 U.S. at 557, 84 S.Ct. at 918, 11 L.Ed.2d at 908-09. We agree and hold that procedural questions arising from a labor dispute and bearing on its final disposition are matters to be determined by an arbitrator. Cf. Jackson Enterprises, Ltd. v. Procious Public Service District, 178 W.Va. 574, 579-580, 363 S.E.2d 460, 465-466 (1987). Thus, the issue as to whether the appellant did, in fact, skip Step 2 of the grievance procedure and, if so, the remedy to be applied is a procedural question to be decided by the arbitrators considering the substantive matter of Moore‘s discharge.
For the foregoing reasons, the judgment of the Circuit Court of Harrison County is reversed, and this case is remanded for further proceedings consistent with the principles set forth in this opinion.
Reversed and remanded.
Joseph M. Price, Charleston, for Kitt Energy.
Charles G. Brown, Atty. Gen., Steve Barcley, Asst. Atty. Gen., for Coal Mine Health & Safety Bd.
MILLER, Justice:
This case presents two questions regarding the application of
James L. Davis, the plaintiff below, is employed by Kitt Energy Corporation as an underground coal miner at its No. 1 Mine in Philippi, West Virginia. Until his removal in 1982, he served as chairman of the Mine Health and Safety Committee, a local body provided for under the mine‘s collective bargaining agreement. See Art. III, § d of the National Bituminous Coal Wage Agreement of 1981. The committee is comprised of a number of experienced miners who are employed at the mine and appointed by the local union. It provides liaison between the miners and the employer on various matters of mine safety and health.
At 2:10 a.m. on September 1, 1982, a broken water main was discovered at the “C” and “D” track switch area of the mine. Repair work was immediately commenced. As a result of the break, water accumulated for a distance of 150 feet along “D” track, a designated escapeway.2 Though the depth of water along the track is disputed by the parties, it exceeded twenty-four inches at maximum. A portable pump was installed by Kitt to remove the water from the track. The water condition was apparently not reported by the fire boss during the preshift inspection.3 At 7:30 a.m., a longwall crew began to work inby the switch area on its scheduled shift.
When Mr. Davis arrived at the mine shortly after 7:30 a.m., he was orally advised of the water accumulation in “D” track by other workers. He immediately approached F.R. Jacobs, the mine superintendent, and demanded a withdrawal of workers from the area. Mr. Jacobs objected, and observed that “D” track was passable and did not pose an imminent danger. Mr. Davis disagreed. He then invoked the authority, conferred upon safety committeemen by the wage agreement, to demand an immediate withdrawal of mine personnel where an imminent danger is believed to exist.4 Mr. Jacobs promptly complied with the demand.
Mine inspectors were advised by telephone of the water condition, and within an hour two federal inspectors arrived at the mine. These inspectors, together with Mr. Davis and three Kitt representatives, investigated the affected area of “D” track. A citation was issued for the presence of floodwater in an escapeway, a violation of
After the inspection was completed, Mr. Jacobs ordered the crew to return to work inby “D” track. Minutes later, Mr. Davis “dangered off” the area and again demanded a withdrawal of workers. Kitt complied and production remained idle until the water was removed at 1:30 p.m. Later in the
On September 7, 1982, Mr. Davis brought a grievance challenging his removal from the safety committee. The matter was unresolved through the grievance process and was submitted to arbitration. On November 22, 1982, after two days of hearings, the arbitrator upheld the removal. He concluded that there was no imminent danger presented by the flooded escapeway because it was passable and alternate routes of escape were available. He also determined that the withdrawal demand was arbitrary and capricious, as it was contrary to the findings of the mine inspectors and unsupported by objective evidence.
Two weeks after the arbitration decision was announced, Mr. Davis petitioned for review of his removal pursuant to
Kitt refused to comply with the order, and Mr. Davis thereupon brought suit in the Circuit Court of Barbour County. A preliminary injunction was issued by the court on March 15, 1984.9 Kitt answered and counterclaimed to obtain enforcement of the prior arbitration decision and to enjoin enforcement of the Board‘s order. It also sought a declaration that Mr. Davis was precluded from pursuing a discrimination remedy under
On July 9, 1984, the circuit court consolidated the suit by Mr. Davis and a direct appeal of the Board‘s order. The Board was granted leave to intervene in the consolidated suit. Kitt moved for summary judgment and, in an opinion dated April 17, 1986, the court granted the motion. The court reasoned that the only persons authorized by the Mine Safety Act to order a withdrawal of workers from the mine are designees of the Division of Mines. Mr. Davis, in demanding a withdrawal of miners from inby “D” track, acted exclusively under authority conferred upon him by the wage agreement. Thus, his remedy was controlled by the wage agreement and not by the Mine Safety Act. A final order incorporating the opinion was entered on July 28, 1986, and this appeal followed.
Mining is by nature a hazardous industry. For this reason the Legislature has, through the enactment of mine safety legislation, adopted a strong public policy to insure the safety of personnel employed in mines throughout the State. We spoke to this point in United Mine Workers of America v. Miller, 170 W.Va. 177, 291 S.E.2d 673 (1982), summarizing the law in Syllabus Point 4:
“The Legislature has established a clear and unequivocal public policy that the [Division] of Mines shall have as its primary purpose ‘the protection of the safety and health of persons employed within or at the mines of this state.’
W.Va.Code § 22-1-2 (1981 Replacement Vol.).”10
See also, Syllabus Point 1 of State ex rel. Perry v. Miller, 171 W.Va. 509, 300 S.E.2d 622 (1983).
Our Mine Safety Act,
The Legislature has also recognized miner participation as an indispensable adjunct to the enforcement process. As we emphasized in Miller: “Only those who work in the mine and are familiar with the day to day operations, are likely to have knowledge of the possible location of safety and health hazards.” 170 W.Va. at 182, 291 S.E.2d at 678. The Mine Safety Act guarantees miners a role in safety enforcement in two important ways. First, a miner representative is specifically authorized to accompany State inspectors during mine examinations. Second, any miner “may request the [State] to have an immediate investigation” of alleged safety violations.
It is beyond peradventure that the purposes of the Mine Safety Act would be jeopardized if employers were permitted to retaliate against miners who participated in safety enforcement. To promote the fullest possible participation by miners,
“No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that he believes or knows that such miner or representative . . . has notified the commissioner, his authorized representative, or an operator, directly or indirectly, of any alleged violation or danger[.]”13
We recently discussed the reach of
III.
We must decide as a threshold matter whether Mr. Davis was engaged in a “protected activity,” that is, an activity for which discrimination is prohibited by
We agree with Mr. Davis that mine safety is regulated by a dual system of rules which substantially overlap. Kitt asks us to divide a miner‘s world into separate and mutually exclusive spheres, so that protection against discrimination is available only where the miner has authority to act under the Mine Safety Act. This we are unable to do. We cannot simply ignore the reality of the workplace. Miners bargain for and secure valuable safety rights which are memorialized in the wage agreement. These rights do not exist in a vacuum, but are intimately bound up with rights arising under the Mine Safety Act.
The right at issue here, that of a safety committeeman to demand a withdrawal of miners, is unquestionably one of contract. Yet, while the right is not specifically recognized by the Mine Safety Act, it invariably is triggered by safety conditions which are regulated by the Act. The wage agreement does not detail what safety violations will support a withdrawal and these conditions must be determined by reference to the Mine Safety Act. Similarly, the reasonableness of the exercise of the right is determined by reference to the hazard covered in the Mine Safety Act.
Furthermore, the right to discipline is also drawn into the Mine Safety Act by the discrimination statute,
This standard is analogous to that fashioned by courts under the Federal Mine Health and Safety Act, which has been interpreted to permit a miner to refuse to work in an area of the mine or to use equipment which is believed to be hazardous. E.g., Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.1981); Consolidation Coal Co. v. Federal Mine Safety & Health Review Comm‘n, 795 F.2d 364 (4th Cir.1986); Miller v. Federal Mine Safety & Health Review Comm‘n, 687 F.2d 194 (7th Cir.1982); see generally, Biddle, Means & Levine, Protected Work Refusals Under Section 105(c)(1) of the Mine Safety and Health Act, 89 W.Va.L.Rev. 629 (1987) (citing cases); 6 Am.L. of Mining, § 201.04[4][b] (2d ed. 1984); Annot., 67 A.L.R. Fed. 554 (1984).
The Seventh Circuit Court of Appeals in Miller, after conceding that “nowhere does
“[L]egislative history . . . supports a right to refuse work in the event that the miner possesses a reasonable, good faith belief that specific working conditions or practices threaten his safety or health.” [663 F.2d] at 1217 n. 6. We agree that there is such a right.” 687 F.2d at 195.
In each of the foregoing cases this reasonable, good faith belief standard was utilized to determine whether the employer could discharge or otherwise discriminate against a miner under the Federal Act.
The fact that the wage agreement provides for an arbitration mechanism to resolve disciplinary disputes does not compel a conclusion of exclusivity where the same operative facts are within the discrimination statute. The United States Supreme Court has considered on several occasions whether rights arising from a collective bargaining or wage agreement can in effect supplant or diminish statutory rights, and has concluded that they may not. E.g., McDonald v. City of West Branch, 466 U.S. 284 (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). Barrentine involved a wage agreement that conflicted in part with the Fair Labor Standards Act (FLSA),
“[W]e have held that FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.” (Citations omitted.) 450 U.S. at 740, 101 S.Ct. at 1445, 67 L.Ed.2d at 653.
Much the same point had been made earlier in Gardner-Denver which involved the arbitration of a discharge dispute under a collective bargaining that resulted in an adverse decision against the employee. A subsequent proceeding was brought by the employee under Title VII of the Civil Rights Act of 1964, claiming the discharge was racially motivated. The employer contended that the employee by seeking arbitration had waived any Title VII claim, but this was rejected by the Supreme Court:
“Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual‘s right to equal employment opportunities. Title VII‘s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee‘s rights under Title VII are not susceptible of prospective waiver.” 415 U.S. at 51-52, 94 S.Ct. at 1021, 39 L.Ed.2d at 160.
We, therefore, conclude that a mine safety committeeman who communicates a safety violation under the Mine Safety Act and enforces a procedural right given under the collective bargaining wage agreement, and who thereafter is subject to discrimination by his employer as a result thereof, is entitled to assert the protections afforded by
IV.
The final issue we address is whether the prior arbitration decision precludes further litigation under the discrimination statute,
The issue here is procedural in nature, and centers upon the preclusive effect which must be given to a prior arbitration award. The Supreme Court in Gardner-Denver began by analyzing the role of an arbitrator under a collective bargaining agreement, stating that:
“His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the ‘industrial common law of the shop‘. . . . The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties[.]” 415 U.S. at 53, 94 S.Ct. at 1022, 39 L.Ed.2d at 161.
The Court also pointed out that the arbitration process itself was “comparatively inferior to judicial processes” in affording procedural safeguards, and that an arbitrator‘s competence “pertains primarily to the law of the shop, not the law of the land.”15 415 U.S. at 57, 94 S.Ct. at 1024, 39 L.Ed.2d at 163.
More importantly, the Court spoke of statutory rights that were absolute and “represent[ed] a congressional command that each employee be free from discriminatory practices.” It observed that the “rights conferred [by statute] can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose. . . .” 415 U.S. at 51, 95 S.Ct. at 1021, 39 L.Ed.2d at 160.
In Barrentine, where the claim involved inconsistencies in pay between the collective bargaining agreement and the minimum wage law, the Court declined to accord any binding effect to the arbiter‘s decision, stating:
“While courts should defer to an arbitral decision where the employee‘s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee‘s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” 450 U.S. at 737, 101 S.Ct. at 1443, 67 L.Ed.2d at 651.
We are persuaded by the foregoing authority that arbitration under the wage agreement does not preclude a separate proceeding as authorized by
In this respect, the circuit court erred in holding that the Board was without jurisdiction to consider the claim. While the arbitrator‘s decision has no preclusive effect, the Gardner-Denver line of cases recognizes that the decision is admissible and should be given such weight as the agency or court that hears the claim believes appropriate. In this regard, we adopt Note 21 of Gardner-Denver.17
It does not appear that the Board gave any consideration to the arbitrator‘s decision. Consequently, upon remand to the circuit court, it in turn should remand the case to the Board. This will enable the Board to consider the decision in the light of Note 21 of Gardner-Denver, giving it such weight as it deems appropriate, and then to issue its decision accordingly.
Reversed and remanded with directions.
NEELY, Justice, dissenting:
I dissent from the majority opinion because the circuit court was correct in holding that the Coal Mine Health & Safety Board of Appeals had no jurisdiction in the present case because Mr. Davis’ claim had been fully and fairly litigated through the arbitration mechanism provided by the bargained-for wage agreement, the terms of which were fully in accord with the Mine Safety Act.
Respondent employer‘s collective bargaining agreement with petitioner Davis’ union authorized the arbitration of any grievance that arose from the interpretation or application of the agreement‘s terms. One section of the wage agreement specifically provides a mechanism for removal of safety committeemen. See Art. III, § d of the National Bituminous Coal Wage Agreement of 1981. Mr. Davis’ grievance was submitted to arbitration and the arbitrator determined that Mr. Davis’ safety demand was arbitrary and capricious, as it was contrary to the findings of the mine inspectors and unsupported by objective evidence. There was no evidence offered that the employer had retaliated against Mr. Davis because of his participation in safety enforcement. The majority opinion offers no evidence that there was anything wrong with the arbitration process or any reason for the arbitrator‘s decision to be vacated except for a vague appeal to “public policy.”
In Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), the U.S. Supreme Court strongly reaffirmed the principle that courts may not overturn labor arbitration awards on public policy grounds unless the public policy invoked is “well defined and dominant” under existing law. The Supreme Court in Paperworkers made clear that courts play only a limited role when asked to review the decision of an arbitrator:
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.
Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator‘s judgment, when it was his judgment and all that it connotes that was bargained for.
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. [Emphasis added]
Paperworkers, supra, at 36-37, 108 S.Ct. at 370, citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960); see also, AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649-650, 106 S.Ct. 1415, 1418-1419, 89 L.Ed.2d 648 (1986).
The reasons for insulating arbitral decisions from judicial review are grounded in the federal statutes regulating labor-management relations. These statutes reflect a decided preference for private settlement of labor disputes without the intervention of government. The Labor Management Relations Act of 1947, 61 Stat. 153,
Where it is contemplated that the arbitrator will determine remedies for contract violations that he finds, courts have no authority to disagree with his honest judgment in that respect. If the courts were free to intervene on these grounds, the speedy resolution of grievances by private mechanisms would be greatly undermined. [Emphasis added]
484 U.S. at 38, 108 S.Ct. at 371.
The W.Va. Supreme Court of Appeals in Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977) began enforcing arbitration awards among commercial parties as an alternative to litigation. See also, Clinton Water Ass‘n v. Farmers Const. Co., 163 W.Va. 85, 254 S.E.2d 692 (1979); Barber v. Union Carbide, 172 W.Va. 199, 304 S.E.2d 353 (1983); State ex rel. Ranger Fuel Corporation v. Lilly, 165 W.Va. 98, 267 S.E.2d 435 (1980); Baker Mine Service, Inc. v. Nutter, 171 W.Va. 770, 301 S.E.2d 860 (1983); Local Division No. 812 of Clarksburg, W.Va., of the Amalgamated Transit Union v. Central W.Va. Transit Authority, 179 W.Va. 31, 365 S.E.2d 76 (1987). In Harley Miller, we decided that the circuit court erred in not enforcing the arbitrators’ award as “all arbitration provisions in all contracts which indicate that the parties intended to arbitrate their differences rather than litigate them are presumptively binding and specifically enforceable.” 160 W.Va. at 487-488, 236 S.E.2d at 447-448.
Furthermore, in our most recent opinion concerning arbitration, we addressed whether a discharge from employment was covered under the union‘s collective bargaining agreement. In Local Division No. 812, supra, we held:
In determining whether or not the parties to a collective bargaining agreement have agreed to submit a particular issue to arbitration, it must be recognized that there is a presumption favoring arbitration, and this presumption may be rebutted only where it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.
179 W.Va. at 35, 365 S.E.2d at 80.
Indeed, the majority‘s position that the appellant‘s rights under
In Syllabus Point 3 of Mellon-Stuart Co. v. Hall, 178 W.Va. 291, 359 S.E.2d 124 (1987), Justice Miller wrote for a unanimous court:
An assessment of three factors is ordinarily made in determining whether res judicata and collateral estoppel may be applied to a hearing body: (1) whether the body acts in a judicial capacity; (2) whether the parties were afforded a full and fair opportunity to litigate the matters in dispute; and (3) whether applying the doctrine is consistent with the express or implied policy in the legislation which created the body.
359 S.E.2d at 126. Clearly, if these three criteria are applied to the present case, the majority should have accorded res judicata effect to the arbitrator‘s decision. First, the arbitrator by contract, acted in a judicial capacity. Second, both parties agreed to arbitrate and had a full and fair opportunity to present their factual and legal positions to the arbitrator. Nowhere in the record does the appellant assert that the arbitrator was corrupt; the appellant merely disliked the end result and wanted to do the whole thing again before the Safety Board. Third, holding that the arbitration ruling is binding would be consistent with the express policy of this Court favoring cheap, efficient, and expeditious arbitration over expensive, cumbersome and time consuming litigation. See Board of Education v. W. Harley Miller, Inc., supra, and its progeny. Finally, the arbitration proceeding in this case is a duplicate of what occurred before the Board. The parties were identical; the issue to be decided was identical; the evidence was identical; and, the legal standard was identical.
There was no reason to give the appellant another bite at the same apple simply because this court wants mines to be safe. Safety is nowhere an issue in this case. The arbitrator has determined that the appellant abused his prerogatives as a safety committeeman and that his actions proceeded from improper motives: that was the issue to be decided and there is no reason to believe that the Board decided it better than the arbitrator. At some point litigation should cease: litigation, per se, is expensive, vexatious, and generally undesirable. Whenever the system can provide less rather than more litigation without sacrificing fairness, that should be its goal.
I am authorized to say that Justice BROTHERTON joins in this dissent.
Notes
“If the Committee believes conditions found [during inspection of the mine] endanger the lives and bodies of the Employees, it shall report its findings and recommendations to the Employer. In those special instances where the Committee believes that an imminent danger exists and the Committee recommends that the Employer remove all Employees from the involved area, the Employer is required to follow the Committee‘s recommendation and remove the Employees from the involved area immediately.”
“Mine openings shall be adequately protected to prevent the entrance into the underground area of the mine of surface fires, fumes, smoke, and floodwater.”
“If the Mine Health and Safety Committee in closing down an area of the mine acts arbitrarily and capriciously, a member or members of such Committee may be removed from the Committee. An Employer seeking to remove a Committee member shall so notify the affected Committeeman and the other members of the Mine Health and Safety Committee. If the Committee objects to such removal, the matter shall be submitted directly to arbitration within 15 days. If the other members of the Committee so determine, the affected member shall remain on the Committee until the case is submitted to and decided by the appropriate panel arbitrator. If the Employer requests removal of the entire Committee, the matter automatically shall be submitted to arbitration and the Committee will continue to serve until the case is submitted to and decided by the arbitrator. A Committee member shall not be suspended or discharged for his official actions as a Committee member.”
“The division of mines and minerals . . . shall give prime consideration to the protection of the safety and health of persons employed within or at the mines of this state.”
“No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this [Act] because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint notifying . . . of an alleged danger or safety or health violation in a coal or other mine, or . . . because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this [Act].”
“A further concern is the union‘s exclusive control over the manner and extent to which an individual grievance is presented. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). In arbitration, as in the collective-bargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit. See J.I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). Moreover, harmony of interest between the union and the individual employee cannot always be presumed, especially where a claim of racial discrimination is made. See, e.g., Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944). And a breach of the union‘s duty of fair representation may prove difficult to establish. See Vaca v. Sipes, supra; Humphrey v. Moore, 375 U.S. 335, 342, 348-351, 84 S.Ct. 363, 367, 371-373, 11 L.Ed.2d 370 (1964).” 415 U.S. at 58 n. 19, 94 S.Ct. at 1024-25 n. 19, 39 L.Ed.2d at 164 n. 19.
“We adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court‘s discretion with regard to the facts and circumstances of each case. Relevant factors include the existence of provisions in the collective-bargaining agreement that conform substantially with [