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OPINION OF TRUSTEES
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In Re

Complainant: Employee
Respondent: Employer
ROD Case No: 81-418——1984年3月26日

Board of Trustees: Harrison Combs, Chairman; John J. O’Connell, Trustee; Paul R. Dean, Trustee.

Pursuant to Article IX of the United Mine Workers of America 1950 Benefit Plan and Trust, and under the authority of an exemption granted by the United States Department of Labor, 受托人审查了这一争议的事实和情况. 争议涉及为雇员提供福利保障, 按工作时间计算, 由雇主根据雇主福利计划的条款提供. 受托人现就此事发表意见.

Background Facts

The Respondent is a trucking company which depends largely on hauling jobs from one particular coal company. 因为煤炭公司已经减少了煤炭产量, 被告解雇了除四名卡车司机外的所有卡车司机. 由于煤炭产量的波动, however, the Respondent offered its senior Employees temporary recall to work from its idle panel.

投诉人自1974年7月1日起受雇于被投诉人. 在1982年11月10日被解雇之前，他一直是固定雇员. 申诉人于1983年1月31日在“临时召回”的基础上重返工作岗位. The Respondent advised him that the work was temporary and no benefits other than wages and overtime would be paid. The Complainant was also advised that he would be provided with benefits coverage for each month during which he worked after his continuation of coverage, based on his hours worked during the 24 consecutive calendar month period prior to November 10, 1982, terminated.

每次有人给我那份工作, 被投诉人给投诉人工作或拒绝工作的选择, 不会影响他的福利保障, 失业救济金或陪护权. The Complainant claims to have agreed to the recall under protest of the conditional terms.

Funds’ records show that 601 hours were reported for the Complainant by the Respondent while he was on temporary recall during the period January 31, 1983, through September 28, 1983. He worked a total of 2,218 hours during the period January 1, 1982, through September 28, 1983. The Respondent provided benefits coverage for the Complainant through December 31, 1983.

The Respondent submitted a copy of an Arbitrator’s Opinion to which the Complainant was a party, wherein the Arbitrator decided the Complainant was not eligible for a clothing allowance for the year 1983 because his recall to work was of a temporary nature. The Respondent claims that the issue of temporary employment should not be considered by the Trustees.

Dispute

Is the Respondent responsible for the provision of continuation of coverage for the Complainant based on all of the Complainant’s hours worked during the 24 consecutive calendar month period immediately prior to his date last worked?

双方立场

Position of the Complainant: He is entitled to continuation of coverage 按工作时间计算 during the period January 1, 1982, through September 28, 1983, 申请人没有提供的资料.

Position of the Respondent: The Complainant was provided with health benefits coverage, 如雇主福利计划所界定, and his coverage was extended based on the number of hours he worked in regular employment during the 24 consecutive calendar month period immediately prior to his date last worked. 问题是被告代表的立场. 其中之一是承认雇主有权确定临时雇用条件, which was previously decided in this case by an arbitrator under the grievance procedures defined in Article XXIII.

Pertinent Provisions

雇主福利计划第I(1)、(2)和(4)条规定:

Article – Definitions

下列术语具有本协议规定的含义:

(1) “雇主”指(公司名称).

(2) “工资协议”指1981年《皇冠搏彩中心网站》, 经不时修订及任何后续协议….

(4) “雇员”系指为雇主从事保密工作的人员, 有资格获得本协议项下的福利.

Article II A. (1)雇主福利计划规定:

第二条-资格

The persons eligible to receive the health benefits pursuant to Article III are as follows:

A. Active Employees

第III条规定的福利应提供给下列任何员工:

1. 在工资协议生效日仍在为雇主工作.

Article III D. (1) (a)雇主福利计划规定:

Article III – Benefits

D. General Provisions

(1) 续保

(a) Layoff

如果雇员因裁员而停止工作, continuation of health, 人寿、意外死亡和肢解保险的保险范围如下:

工作小时数
连续24年的雇主
日历月期间
在雇员日期之前，最后的保险延续期
Worked 从上次工作日期开始

2,000 or more hours 月余额加上12个月

500或更多，但少于 月余额加上6个月
2,000 hours

Less than 500 hours 30 days

Discussion

The Respondent has claimed that the conditions of temporary recall under which the Complainant resumed his employment were clearly defined in advance and that his refusal to accept temporary recall under these conditions would not have adversely affected his panel rights. The Respondent’s representative has claimed the main issue is one of recognition of an Employer’s right to recall Employees in temporary employment and that this right has already been upheld in this case by a coal field arbitrator.

在决定这一争端中提出的问题时, the Trustees have considered the fact that the Respondent specified the terms of this “temporary” employment to the Complainant before such employment was accepted. It was also noted that these terms differed from the terms of employment specified in the National Bituminous Coal Wage Agreement of 1981 and that these differences extended to the provisions of Article XX of that Agreement. Lastly, they considered the fact that the Complainant did accept employment with the Respondent in full knowledge of the conditions as explained by the Respondent.

Nevertheless, the Trustees are aware of the position of the UMWA as the exclusive bargaining agent of the Employees, and that the terms of the agreement cannot be modified or abrogated through unilateral actions by the Employer, 即使得到其雇员的同意, 在没有谈判代表明确参与和同意的情况下. Therefore, although they recognize that an arbitrator has addressed a question of the Complainant’s right to payment of a clothing allowance related to this period of employment, the Trustees are not bound by that decision but rather are obligated to review the separate issue of provision of health benefits coverage under Article XX, 哪些在他们的管辖范围内, 在该协定的范围内.

Article III D. (1) (a) provides that continuation of coverage is based on the number of hours worked by an Employee during the 24 consecutive calendar month period immediately prior to the Employee’s date last worked. There is no provision in the Employer’s Benefit Plan which specifies that hours worked are to be counted only for “scheduled days” of work. 此外，没有规定不包括临时召回期间的工作时间.

申诉人最后一次工作的日期是1983年9月28日. He had worked 2,218 hours during the 24 consecutive calendar month period immediately prior to that date. 因此，根据第三D条. (1)(a)，他有资格在1984年9月30日之前继续享受福利.

Opinion of the Trustees

The Respondent is responsible for the provision of continuation of coverage for the Complainant through September 30, 1984, 只要他继续满足所有资格要求.