WEST VIRGINIA RECORD

CLARKSBURG – Consolidation Coal has sued the United Mine Workers of America in federal court for the right to fire a miner who tested positive for cocaine.

Consolidation Coal seeks to overturn arbitrator Michael Wolf, who spared Markel Koon's job and ordered the company to pay for his drug treatment.

"Reinstatement would enable Mr. Koon to continue to use cocaine without being detected, possibly for years," Carolyn Wade of Clarksburg wrote for Consolidation Coal.

She filed a complaint on May 11. As of July 20, the union had not answered.

Koon worked underground at Robinson Run mine. According to the complaint the mine lies below Marion, Harrison and Wetzel counties.

Random testing began there last July. In December the company and UMW Local 1501 agreed that grievance and arbitration procedures would apply to testing disputes.

Koon's name popped up for a random test on Dec. 31. The company sent his urine to a laboratory and the lab sent back a positive report.

"When Mr. Koon was confronted with the results, he denied using cocaine and asked that another test be run by a different laboratory," Wade wrote.

A second test produced the same result, she wrote.

Robinson Run managers suspended Koon on Jan. 21 and handed him a letter stating their intent to discharge him.

"Mr. Koon again denied using cocaine," Wade wrote.

"Mr. Koon twice lied to Consol's managers, for he had used cocaine, together with alcohol, on Dec. 28," she wrote.

Local 1501 filed a grievance on Jan. 23, and arbitrator Wolf held a hearing on Feb. 6.

On Feb. 16 Wolf voided the discharge and converted it to suspension.
He held another hearing on Feb. 24, and two days later he ordered Consolidation Coal to pay for Koon's drug treatment.

Wade estimated treatment costs at $12,000 to $14,000, and wrote that nothing in the union contract or the testing rules obligated the company to pay the cost.

She wrote that Wolf based his decisions on his own notions of industrial justice.

She wrote that his decisions violated public policy.

West Virginia law and federal law forbid Consolidation Coal from allowing intoxicants and persons under their influence to enter mines, she wrote.