Font ResizeSome coal miners' rights to chew tobacco while working deep underground are on the line Wednesday.
That's when an arbitrator is scheduled to hear a United Mine Workers of America challenge of a new policy that forbids employees of the Deer Creek mine and the Castle Dale preparation plant from having a pinch between their cheek and gum on the job.
The policy became effective July 1 at the Emery County operations by Energy West Mining Co., the unionized coal mining subsidiary of Rocky Mountain Power, at the behest of its parent companies, PacifiCorp and MidAmerican Energy Holdings Co.
"It is a policy consistent across MidAmerican Energy," said Rocky Mountain Power spokesman Dave Eskelsen. "The company is concerned about the health and safety of its employees. A tobacco-free workplace is healthier and safer for everyone."
Dave Maggio, the union's international representative from Price-based District 22, which includes Utah, spit on that argument, while acknowledging that some miners are addicted to the product.
"We have guys dying of black lung [disease]. We have guys inhaling diesel fumes on a daily basis. We have guys who suffer back, knee and ankle injuries up the kazoo," he said. "But we've seen no ill effects from chewing tobacco. None. And I've been in this industry 30 years.
"Nobody can point to a guy and say, 'He missed a shift because of chewing tobacco.' [Company] time and money could be better spent trying to
Neither of Utah's other large coal-mine employers, Arch Coal Inc. nor Murray Energy Corp., have similar prohibitions on smokeless tobacco, which is required to carry labels on its containers that include the warning the product might cause cancer.
The dispute began last December when the company's director of labor relations informed Deer Creek's local union president of the tobacco-free policy at all workplaces, effective July 1.
Union officials quickly filed a grievance, contending the policy would violate the collective bargaining agreement covering 276 Deer Creek miners and 17 prep plant workers.
The policy was not a reasonable revision of the agreement, the union said, contending that more than 100 miners -- many of whom work eight to 12-hour shifts up to 14 miles underground -- are addicted to smokeless tobacco.
Although the policy did make provisions for the remote locations where miners work, designating areas underground where they could chew during breaks and before and after shifts, Maggio dismissed the allowances as impractical.
"Chewing is not like smoking a cigarette," he said. "You put it in your mouth and keep it all day. It's not like, 'Did you take a two-minute chew break?' That's not how it works. And there's just three [designated areas] in the mine, which has 100 miles of tunnel. The odds of making it to one of these is stupid."
According to court documents, Energy West and the union agreed April 20 to retain arbitrator Fred Butler to hear the matter. The union contends the company pledged not to implement the policy until after Wednesday's arbitration session in Price, but that on June 18, Energy West officials informed Maggio that corporate higher-ups insisted the policy go into effect July 1.
The union went to federal court, but its efforts to delay policy implementation through a temporary restraining order and a preliminary injunction were denied.
However, in rejecting the preliminary injunction request, U.S. District Judge Dale Kimball noted that "while Energy West argues that it will succeed at arbitration, the court concludes that the union has sufficiently demonstrated grounds for success on its arguments."
Kimball ruled against the UMWA motion, in part, because the union could not show that any employees would lose their jobs or face severe discipline before the arbitrator determined whether the policy violated the collective-bargaining agreement.
But he also observed "it is not clear to the court which party will prevail in arbitration ... It would be improper for the court to encroach upon the role of the arbitrator," adding later that if a disciplinary case arises before the arbitrator rules, "the court is willing to revisit the motion."
