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Title: City of Portland and Municipal Employees Local 483
Date: Febuary, 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 105

BEFORE THE ARBITRATOR

 

IN THE MATTER OF THE                                   )

GRIEVANCE ARBITRATION                              )

            Between                                                      )

                                                                               )

CITY OF PORTLAND,                                         )

                                                                               )            OPINION

                                                Employer,                )             AND

                                                                               )           AWARD

            and                                                              )

                                                                               )

MUNICIPAL EMPLOYEES                                 )

LOCAL 483,                                                         )

                                                                              )

                                                     Union.               )

 

--------------------------------

 

Doug Brown Suspension

Hearing Held December 17, 1993

Portland, Oregon

 

Jack H. Calhoun

Arbitrator

 

--------------------------------

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

FOR THE EMPLOYER:                             FOR THE UNION:

 

Liana Colombo                                                   Nicholas C. Kies

Deputy City Attorney                                    Field Representative

City of Portland                                      Municipal Employees Local 483

1220 S.W. Fifth Avenue                          310 N.E. 20th Avenue

Portland, OR  97204                                       Portland, OR  97232

 


BACKGROUND

 

            The City of Portland and Municipal Employees Local Union 483 are parties to a collective bargaining agreement that covers the terms and conditions of employment of bargaining unit employees, including the grievant, during the period of time pertinent here.  On March 24, 1993 the grievant, Doug Brown, was suspended without pay for eight working days.  The Union filed a grievance, which went unresolved at earlier steps of the grievance procedure.  The matter was submitted to arbitration for a final and binding decision.  A hearing was held on December 17, 1993.  The parties submitted post-hearing briefs, the last of which was received on February 4, 1993.

ISSUE

            The parties were in agreement that the issue is whether Doug Brown was suspended for just cause and, if not, what is the appropriate remedy.

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties' collective bargaining agreement are relevant to the issue in dispute:


21.                    SAFETY - SANITATION

 

21.1                  The City will exert every reasonable effort to provide and maintain safe working conditions, and the Unions will cooperate to that end and support the City when discipline is reasonably required in the case of safety regulation violations.  The willful violation of any State or Federal safety law by an employee shall be cause for disciplinary action or discharge.

                        . . .

 

21.4                  No employee shall be allowed to operate any vehicle or machinery which does not comply with the Safety Codes or the Laws of the State of Oregon.

                        . . .

 

21.4.1               Whenever any automotive or construction equipment is taken out of service for safety or mechanical reasons, the City shall place a tag on the equipment stating the equipment is out of service.  A record of service will be maintained and be available for review by the operator of such equipment.

 

21.5                  Any employee who believes that any working condition or machinery is unsafe shall immediately call it to the attention of his/her supervisor.  The supervisor shall immediately discuss the matter with the employee and try to arrive at a mutual agreement as to whether or not an unsafe condition exists.  If unable to reach a mutual agreement on the matter, the supervisor may make a decision on the matter.  However, if the employee is not satisfied with the decision, such employee shall be allowed time to telephone the City's Safety Officer and if s/he is unavailable, the Workers' Compensation Board, to request an immediate investigation of the matter.

 

21.6                  No employee shall be disciplined for refusal to violate the Safety Codes or the laws of the State of Oregon or to follow a supervisory directive where the employee reasonably believes direct bodily harm would result.

                        . . .

 

33.                    DISCIPLINE AND DISCHARGE

 

33.1                  Disciplinary actions or measures shall include only oral warning, written reprimand, demotion, suspension and discharge.  Disciplinary action or measures may be imposed only for just cause.  Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure.

                        . . .

 

33.2                  Discharge, Demotion and Suspension:  The City shall not discharge, demote or suspend any employee without just cause who has completed his/her probationary period as provided in section 1.1.  If, in any case, the City feels that there is just cause for discharge, demotion or suspension, the employee involved and the appropriate Union shall be provided with a written notice of proposed discipline seven (7) calendar days before the effective date.  Such notification shall state the nature of the offense for which the employee is being discharged, demoted or suspended, in detail, specifying dates, locations, and the particular nature of the offense committed by the employee and the right to respond to the authority proposing such action either orally or in writing prior to the effective date of proposed discipline.  The Union shall have the right to appeal such disciplinary action within seven (7) calendar days of receipt of written notice of imposed discipline as a grievance at Step 34.3.6 of the grievance procedure.  Upon appeal of any discharge, demotion or suspension before the Civil Service Board, any grievance filed under this section will be withdrawn.

                        . . .

 

33.4                  Any employee found to be unjustly suspended or discharged shall be reinstated with full compensation for all lost time and with full restoration of all rights and conditions of employment unless otherwise stipulated by mutual agreement or otherwise specified in the grievance procedure or by an arbitrator under the grievance procedures hereinafter set forth.

                        . . .

 

34.3.7   Level Five -- Arbitration:

 

                        . . .

                                    c.         The arbitrator's decision shall be final and binding, but the arbitrator shall have no power to alter, modify, amend, add to or detract from the terms of this Agreement.  The decision of arbitration shall be within the scope and terms of this Agreement and shall be in writing.

 


            STATEMENT OF FACTS

            The grievant is a maintenance mechanic who has worked for the City of Portland, Bureau of Parks and Recreation for 15 years.  There are two primary categories of Bureau employees whose positions are classified as maintenance mechanic:  those who work in the maintenance and repair shop and those who perform field work.  During the times pertinent here, Doug Brown was the crew leader of a field maintenance crew made up of himself and three utility workers, Sandy Nero, Ron Wagenaar, and LouAnn Wynstra.

            Management of the Bureau decided early in 1992 that safety policies were not being enforced at all levels of the organization as they should be.  A decision was made to "clean the slate"--the term used to mean that although safety may not have been emphasized in the past, from then on it would be.  Safety rules would be enforced.  All employees were made aware of the new emphasis on safety.

            In the fall of 1992 a Bureau employee was killed on the job, in part, because of a lack of safety precaution being taken by supervisory personnel.  The supervisors were subsequently suspended.

            In December of 1992 the director of the Bureau issued a letter to all employees to reinforce the safety policy.  In the letter he noted that failure to comply with the policy could result in disciplinary action, including discharge.  Employees at all levels were directed to follow all safety rules, and to seek assistance to clarify rules affecting them and their work.  Managers and supervisors were required to develop a plan of action for dealing with safety issues.  In general, all employees were required to be individually safety conscious, and managers were directed to discuss the letter and safety policies with their employees.

            On January 12, 1993, John McFarland, senior facilities and maintenance supervisor, and Doug Brown's immediate superior, held a meeting with his employees, including all individuals involved in this grievance.  He informed them of the importance of safety, and passed out and posted copies of the director's letter.  He instructed them to bring to his attention any unsafe condition or hazard.

            On Monday, February 8, 1993, Doug Brown was assigned as leader of an asphalt crew, which included the three utility workers previously named.  Prior to that time he had only worked on an asphalt crew three days during the last eight months.  On the 8th he was filling in for John Lewis, who was ill.

            The crew drove the necessary equipment to the job site on Monday morning.  Doug Brown unloaded the asphalt roller and operated it that day.  When the crew was first assembling at the job site one of the trucks failed to start and Ken Jourdan, a maintenance mechanic who worked in the repair shop, was called to get it started.  After he started the truck and was about to leave, he was called over by Doug Brown, who was operating the roller at the time.

            At this point the testimony of Brown and Jourdan differ significantly.  Brown said he showed Jourdan how loose the lever that controlled the movement of the roller was, turned the roller off, and got off so Jourdan could look at the lever mechanism.  According to Brown, Jourdan got out of his pickup, inspected the lever mechanism, and asked Brown if he had any tools.  When Brown said he had none, Jourdan said it probably need a new part.  Jourdan told Brown to go ahead and use it and he would get the new part and repair it later.  Brown accepted Jourdan's decision because: 1) the lever was not vastly different than it had always been--the lever always had to be held so that it would not fall into gear; 2) he believed he could operate it safely on that job; and 3) in the past when equipment malfunctioned it was brought to Jourdan, who decided how and when to fix it.

            According to Ken Jourdan, when Brown called him over to look at the roller lever, he did not get out of his pickup nor did Brown get off the roller.  Brown asked him to look while he demonstrated how, when pushed forward, the lever would continue to move further forward on its own.  From Jourdan's perspective, he thought the lever was acceptable.  Brown did not tell him that when the lever was put in neutral it would not stay.  Brown asked him to fix it but he did not have tools with him.  He asked Brown if he could get by with it that day.  When Brown said he could, Jourdan told him to bring the roller into the shop early so it could be fixed.

            During both interviews, subsequent to the ensuing accident, with Yvonne Deckard, human resources manager for the Bureau, Ken Jourdan went on to say he should have gotten out of his pickup, inspected the malfunctioning lever, had Brown put it on a trailer, and taken it to the shop.  After he later looked at the lever, he determined it was unsafe and should not have been operated.  Jourdan explained that he was not as thorough as he normally would have been because his father had died recently.  He said if he had been thinking correctly, he would have inspected the lever closely, and that if he had done so, he would have taken the roller out of service.  He also said he should have been able to assess the problem even with the limited information Brown gave him.

            At the end of the work day the crew took the equipment, including the roller, back to the shop area.  Brown did not mention to Jourdan that the roller was in nor did Jourdan inquire about it.  Brown said he did not mention it because Jourdan had said he would get a new part and Brown thought he was waiting for it.

            The next day, on February 9, the crew went to a job site where Sandy Nero unloaded the roller from the trailer and parked it by a curb where it remained until later that afternoon.  Nero had operated the roller once before three years previously.  At that time the lever would stay in neutral.  When it was time to leave, Nero began to load the roller onto the trailer.  When Ron Wagenaar saw her he said maybe she should let Doug Brown load it.  Wagenaar had heard the conversation the previous day between Brown and Jourdan and he had told Brown he did not want to operate the roller.

            Nero thought Wagenaar's comment meant he did not think she was capable of loading the roller, since he had not seen her do so previously; therefore, she proceeded to back it onto the trailer.  When she got it on the trailer, Wagenaar stepped in front and began detaching the ramps on which the roller had been driven onto the trailer.  While he was doing so, Nero took her hand off the lever and it fell into forward gear, causing the roller to hit a ramp which in turn hit Wagenaar in the head.  He was knocked down and had trouble standing again.  Wagenaar was taken back to the shop area where John McFarland directed him to go to the hospital.  The accident was not serious--Wagenaar was back at work the following day and had suffered no lasting injuries.

            McFarland questioned each crew member on the afternoon of February 9.  The next day he decided a formal investigation was necessary because the stories of Brown and Jourdan were so divergent.  Ms. Deckard conducted the investigation by interviewing members of the asphalt crew, McFarland, and John Lewis, the maintenance mechanic who had been ill.  She taped the interviews, which were played during the course of the hearing.

            During her interview, Sandy Nero said she did not know the roller was unsafe at the time she loaded it.  She had knowledge of the Bureau's safety policy and understood that unsafe equipment was not to be used, that it was to be reported to the supervisor or to the mechanics.  She did not know whether Jourdan got out of his pickup on the 8th, but she assumed he did.  She could not hear the conversation between Jourdan and Brown because of noise.  She believed that unless one was used to operating the roller as it was on the 9th, it was unsafe because the new operator would not know the lever would fall into gear.

            Ken Jourdan stated during his interview that he left it to Doug Brown's judgment whether to operate the roller.  Usually when he knows equipment is unsafe he tells McFarland and then takes it out of service.  He said he felt partially responsible, he should have checked the roller; however, Brown did not convey to him the seriousness of the problem.  He believed Brown knew the roller was unsafe to operate, any operator would have known it was unsafe.  Three weeks earlier Brown brought a trailer to him and said it was unsafe.

            Ron Wagenaar said during his interview that he told Brown the roller was unsafe on the 9th and he did not want to operate it.  Brown acquiesced and operated it himself.

            LouAnn Wynstra said no one knew the roller was unsafe on the 9th.  She was familiar with the Bureau's safety policy.

            Doug Brown was the only one interviewed by Deckard who was advised to have Union representation during the first series of interviews.  He believed he had complied with proper procedure when he called Jourdan over and showed him the loose lever.  Brown thought Jourdan was the expert on equipment repair and would know when it became unsafe.  On the 8th the lever was a little more loose than usual; therefore, he asked Jourdan to fix it.  When Jourdan did not say the roller was unsafe after inspecting it, he thought it was acceptable to use it.  The roller was not much different than usual--one always had to hold onto the lever when operating the roller.  No one had ever told him how tight the lever was supposed to be.  Brown thought the crew heard his conversation with Jourdan on the 8th.  Apparently Ron Wagenaar heard it because he told Brown he did not want to operate the roller.  Brown knew it was his responsibility as crew leader to determine the condition of equipment on the job site; therefore, when he decided he did not like the way the lever was working, he called Jourdan to look at it.  There are no specific guidelines to show how loose the lever had to be to be considered unsafe.  Brown stated he had relied on Jourdan in the past to determine whether equipment was not operating properly.  If Jourdan said it was operational, he used it.  He said he does not know everything about all the equipment--that is why he relies on the shop mechanics.  Since Jourdan said nothing to him when he brought the roller in the shop an hour early on the 8th, Brown believed it logical to conclude Jourdan never told him to bring it in an hour early.  Jourdan's actions implied that the roller was safe because he did not put it out of service, he did not tell Brown to get off it nor did he say to bring it in immediately.

            Brown learned to operate the roller several years earlier and was told to watch the lever because it would not stay in neutral.  At times it was taken to the shop and tightened, but he never felt comfortable letting the roller idle without having his hand on the lever.  John Lewis told him to put his knee against the lever to hold it in place.  Brown was told from the beginning that one had to operate the roller with the lever loose and that is what he did.

            John McFarland stated during his interview that Brown was in charge of the crew and it was his responsibility to make determinations regarding the safety of equipment.  Brown did not tell him the roller was unsafe nor did he relate to Jourdan the seriousness of the problem.  Brown attended the safety meeting and should have known the policies.  McFarland believed Jourdan's story over Brown's because he perceived inconsistencies in Brown's story and because Jourdan's version of what happened never changed.

            During the interview, John Lewis said the lever on the roller had always moved into gear on its own.  It was not sent in for repairs because that is the way it was built.  The roller is 15 years old and he had operated it a long time.  He was never comfortable with the way the lever would go back and forth.  You could not trust it.  In his opinion no one deserved discipline.  Nero was not familiar with the roller and Wagenaar should not have jumped in front of the roller until it was secure on the trailer.  Brown probably should have loaded the roller, he believed. 

            After evaluating both series of interviews, Yvonne Deckard met with John McFarland.  She had decided to take no action regarding the issue of honesty as it related to Brown's and Jourdan's statements because she had insufficient information from which she could draw a conclusion as to who was lying.  As to the safety policy violation, she thought a suspension of Brown was proper; McFarland wanted to discharge him.  They ultimately agreed on a 10-day suspension without pay, which was later reduced to eight days.

            During her investigation Yvonne Deckard considered disciplining others besides Brown.  She evaluated Ron Wagenaar's conduct and decided that, although he had not reported the unsafe condition of the roller to McFarland, he had reported it to Brown by refusing to operate the roller; therefore, he had fulfilled his duty.  As to Wagenaar's standing in front of the roller after Nero drove it onto the trailer but before it was securely chocked, she recommended he be counseled by McFarland.

            Deckard concluded Wynstra was not at fault.  She had no knowledge of the unsafe condition of the roller.

            With respect to Sandy Nero's involvement, Deckard decided she had no knowledge of the roller's condition prior to the accident.  Deckard concluded that Nero properly felt she could load the roller based on her previous experience and based on the fact she loaded it properly.

            Disciplinary action against Ken Jourdan was strongly considered by Deckard because of her doubts about his honesty in relating the events of February 8 to her, and because of the accident itself and the fact the condition of the roller was not checked immediately by him.  However, she was unable to find conclusive evidence that he was dishonest.  Moreover, given the fact that Brown had given Jourdan limited information, she did not believe Jourdan had enough information to take the roller out of service.  He acted properly based on the limited information he had.

            Deckard believed Jourdan's story over Brown's because Jourdan's story never changed, he answered all questions directly and never wavered.  What he showed by his behavior made his story more credible.  Deckard did not feel Jourdan was being evasive or dishonest.  She was impressed by the fact that Jourdan and the crew members, other than Brown, were all willing to take some of the responsibility.  All felt they could find fault in what they had done.  Jourdan said he was not as thorough as he normally would have been because of his father's death.  He said if he had been thinking correctly he would have gotten out of the pickup and asked Brown to get off the roller so he could inspect it closely.  If he had done so, he would have taken it out of service.  He believed that even with the limited information he had he should have been able to assess the problem.

            Deckard believed Jourdan's statements were not inconsistent or implausible, there were no contradictions, and his answers were not hedged.  She believed Brown's statements were just the opposite.  She had trouble getting information from Brown.  Although she understood his nervousness because he was the subject of possible discipline, she found him to be evasive.  He said he did not know the procedure for taking equipment out of service.  He further said Jourdan got out of the pickup and inspected the lever; however, to do that, Brown would have had to get off the roller.

            Disciplinary action against John Lewis was not considered by Deckard because he stated he had to push the lever forward to get full power.  She, therefore, concluded the lever was not simply falling into gear or else he would not have had to push it forward to get full power.  She concluded the lever was not behaving during the week prior to the accident the way it was on the day before and during the day of the accident.

            Deckard did not advise that other employees she interviewed have a Union representative present because, unlike Brown, the threat of discipline was not present at the time.  Brown was determined to be under threat of discipline because McFarland had told her there could be disciplinary action against Brown based on McFarland's preliminary investigation.

            In Deckard's opinion, a suspension was proper rather than an oral warning or written reprimand because the Bureau had "cleaned the slate" and emphatically communicated to employees the importance of safety.  Two other employees had been suspended because of the death of another employee.  Further, the accident amounted to a serious infraction of the rules; therefore, starting at the lowest level of progressive discipline was not considered to be sufficiently corrective in this case.

            On March 17, 1993, McFarland issued a notice, by letter, to Doug Brown of a proposed suspension without pay.  The letter informed him of the results of the investigation and the conclusions reached therefrom.  McFarland concluded the roller did not function properly, that Brown knew that fact, and that he failed to: 1) inform his crew of the fact; 2) halt the work and return the roller to the shop; 3) follow McFarland's directive of January 12, 1993, by reporting unsafe equipment to him; and 4) follow McFarland's directive that faulty equipment was not to be taken out for use.  It also advised him of his opportunity to respond to the charges.  Brown appeared at the appointed time and made a brief statement, saying essentially that his earlier statements were still appropriate.  He also indicated that, in retrospect, he would have stopped the job; however, there was a lot of hot asphalt there at the time.  He did not know what the standard operating procedure was then, but he said he did then and he would not do the same again.  He believed he handled it right at the time.  He criticized the notice of proposed discipline letter as being biased because it only set forth the facts the City wanted to relate; it did not show facts to the contrary.

            On March 24, 1993, Brown was suspended for eight days without pay.  The specific reason for the suspension was for violation of City Code 4.01.030 G2, neglect of duty or negligence in performance of duty causing a substantial risk of personal injury or damage to property; and G7, safety rules or policies.  The number of days of suspension was reduced because McFarland believed Brown understood the seriousness of the violation and he would not let it happen again.

POSITION OF THE PARTIES

The City

            The City contends that Doug Brown had forewarning or knowledge of the possible or probable consequences of his failure to comply with safety policies.  The collective bargaining agreement itself emphasizes safety in several provisions and notes that violations are subject to disciplinary action.  The director of the Bureau adopted a safety policy and communicated it to all employees.  Later on, after the death of an employee, he sent a letter to all employees to reinforce his earlier policy and to inform them that failure to comply could result in disciplinary action, including discharge.  In January of 1993 McFarland met with his employees, passed out copies of the director's letter, and informed them that unsafe conditions were to be brought to his attention immediately.

            McFarland's message and the safety policy were understood by the employees, the City maintains.  Several of the employees who were interviewed said they understood that unsafe equipment was to be taken out of service; it was not to be used.  Doug Brown did not claim to be unaware of the safety rules and their application.  He did claim he was unaware of the consequences of failing to comply with safety rules and procedures.

            The behavior expected of an employee who finds unsafe equipment is to inform others and take it out of service.  The City argues the requirement is reasonably related to the efficient and safe operation of City business.  The City is entitled to have its employees work in a safe manner and to follow rules for safe working conditions.

            The City maintains that before discipline was imposed on Doug Brown a fair and objective investigation was conducted for the purpose of determining whether he violated the safety policy.  All members of the crew and several other employees were interviewed by Yvonne Deckard, who was a neutral in the matter.  Follow-up interviews were also conducted.

            Substantial evidence of Brown's guilt was obtained by Deckard.  She decided to credit Jourdan's story over Brown's after she reviewed all evidence.  She concluded the roller did not operate properly and Brown knew it.  He failed to tell the crew, to halt the work, and to take the roller to the shop.  Brown did not follow McFarland's directive to report unsafe equipment to him, and he failed to follow McFarland's directive that defective equipment was not to leave the yard.

            In the City's view, the Bureau applied its rules even-handedly and without discrimination.  There was no evidence other employees had not followed procedures regarding unsafe equipment.  Two other non-bargaining unit employees received suspensions for violating safety policy.

            The discipline imposed on Doug Brown was reasonably related to the seriousness of the offense he committed.  As a crew leader he was responsible for the decision to take equipment to the job site and use it.  Progressive discipline, starting with warnings and reprimands, is not required for all types of offenses.  Where the nature of the offense is serious, employers may impose stronger penalties for first offenses.

            The City argues that Brown's report to Jourdan about the condition of the lever was not sufficient.  Even if Brown's story is believed, he still should have taken the roller out of service and warned his crew of the hazard.  Moreover, Brown took the roller out to the job site the next day.  He had sufficient expertise as a maintenance mechanic to be able to determine whether equipment is operating properly.

            The condition of the roller was not normal, and Brown's belief he could operate it safely should not serve to excuse him.  The crew members stated it was not operating normally.

The Union

            The Union contends that Doug Brown was treated disparately and was held accountable for actions that were no more unsafe than the actions others on the crew and McFarland, Jourdan, and Lewis had taken.  The safety memorandum that McFarland read was too general to be meaningful, and there was no specific follow-up training.

            Both Sandy Nero and Ron Wagenaar engaged in unsafe practices when the roller was loaded.  Wagenaar knew the lever was loose, yet he placed himself in front of the roller before it was secured on the trailer.  Nero should have turned the roller off and chocked the wheels.

            Ken Jourdan should have checked out the roller more carefully on February 8 when Brown called him over to look at it.  Jourdan is the person crew members go to when equipment malfunctions.  Jourdan testified he determined the roller was unsafe two years earlier.  He also said the crew had been operating it in an unsafe condition but had not called it to his attention.

            John Lewis testified he had to hold the lever in place with his leg to prevent it from falling into gear.  Jourdan testified the lever was loose enough to fall into gear after forty hours of operation, a period of about six months, the Union urges.

            In the Union's view, the investigation that was conducted was directed at Brown from the beginning.  McFarland had recommended that he be discharged before the formal investigation began.  McFarland was out to get Brown from the start.

            Yvonne Deckard focused on Brown and ignored inconsistencies in the statements made by others.  Ken Jourdan's ability to remember was not established; he was affected by his father's recent death.  Nero said she did not know the lever was loose, but Jourdan said anyone who operated it would know it was loose.  Ron Wagenaar said Nero unloaded the roller.  Ken Jourdan said he heard Wagenaar tell Brown that he did not want to operate the roller, yet when Brown called him to look at the roller, Jourdan was not concerned enough to get out of his truck, as he claimed.

            Brown only works on the asphalt crew occasionally, but he was the only one to mention the loose lever.  Other McFarland employees must have known about it and operated it in that condition, the Union argues.

            The Union urges that the eight-day suspension was not progressive in nature, no oral warning or written reprimand was given.  Lesser disciplinary action would have corrected his behavior.  Brown was punished for the City's failure to address safety issues through training and evaluating employee work practices.

 


OPINION

            At the hearing Ann Shihadeh, a risk management specialist in the City's administrative services section, was called as a witness by the Union.  The City objected to her testimony related to her participation in the accident investigation and her conclusion drawn from that investigation.  I overruled the objection and allowed her testimony.  After reviewing the record, I have concluded Ms. Shihadeh's testimony is not probative of any issue in dispute in this matter; therefore, I have disregarded her testimony.  I have credited Yvonne Deckard's testimony regarding the incomplete nature of Shihadeh's involvement in the investigation.

            For the most part, the facts in this case are not in dispute.  Doug Brown, as crew leader, was aware the roller was not functioning properly, and he mentioned it to Ken Jourdan, a fellow maintenance mechanic who worked in the maintenance and repair shop.  Even with knowledge that the roller was not working properly, Brown failed to inform his crew of that fact, failed to remove the roller from service, and failed to inform McFarland about the roller.  He was discharged for negligence of duty in causing a substantial risk of personal injury and for violating safety rules.

            There was wide disagreement over whether Brown actually emphasized the severity of the malfunctioning lever to Jourdan, and whether Jourdan got out of the pickup and inspected the problem closely.  Jourdan said Brown did not tell him how bad the problem was, and he did not get out of the pickup.  Sandy Nero stated frankly that one of the two was being untruthful.

            It is not necessary to make a credibility determination regarding Brown and Jourdan's divergent stories.  If one takes Jourdan's statement as it was given to Yvonne Deckard, it is abundantly clear that he was equally at fault with Brown in not removing the piece of equipment from service on February 8.  He disputed Brown's version of the events and conversation on the morning of February 8 as they related to the roller lever mechanism, but he went on to admit he should have gotten out of his truck, inspected the problem more closely, and taken the roller out of service.  He explained that his father's death had rendered him less thorough than he usually was.  Moreover, he said that even with the limited information Brown gave him, he should have been able to assess the problem.

            In her investigation, Deckard seemingly credited statements made by Jourdan and other members of the crew in part because they were willing to accept responsibility and admit they were partially at fault.  She discredited Brown's statements because he was belligerent, evasive, and hostile.  Brown also made statements that she believed were contradictory.  Even if one accepts Deckard's evaluation of the statements made by the employees to her during her investigation, and in effect credits Jourdan's version over Brown's, one is still left with the candid admission of Jourdan that he should have acted differently.

            Ken Jourdan's admission during interviews with Deckard, coupled with the fact he had worked on the roller in the past, compels the conclusion he knew or should have known on the morning of February 8 that the piece of equipment needed his specialized attention.  If he had given the problem the attention it required, the roller would have been declared unsafe then and there and the accident of February 9 would have been avoided.

            Both Ken Jourdan and Doug Brown were maintenance mechanics with considerable experience.  Both should have known the roller was unsafe, and both should have been held equally culpable.  McFarland's instructions to his employees were sufficiently explicit to inform them they were to take faulty equipment out of service and then let him know.  Ken Jourdan said it was his custom to take unsafe equipment out of service.

            There were mitigating factors that could be viewed as exonerating, both as to Jourdan and Brown's conduct; however, they are unnecessary to the resolution of the issue here.  Suffice it to say there had been a long history of unsafe use of the roller and it had gone uncorrected.  Both John Lewis and Doug Brown gave extensive statements regarding the unsafe design and operation of the faulty roller lever.  Under the circumstances, it is altogether understandable that both Brown and Jourdan would have acted as they did before the accident.  John Lewis stated he was never comfortable with the roller; the handle always moved into gear, and it was not taken in for repair because that was the "nature of the roller."  He did not trust it when it was new, but used it because that was the way it came.  Lewis also said he did not think anyone did anything that warranted disciplining.  Nero was not familiar with the roller, and Wagenaar should not have jumped in front of it before it was secure.

            The City is correct in stating that Brown had forewarning or knowledge of the probable consequences of his failure to comply with the safety policy.  Both the policy and McFarland's instructions were clear, and they were communicated to all his employees, including Brown.  The same policy and instructions were also communicated to Ken Jourdan.

            The rule and policy were reasonably related to the City's business, and the City conducted an investigation into the events surrounding the accident.  Evidence of Brown's guilt was obtained and he was punished.

            Contrary to the City's argument, however, there was ample evidence that Jourdan had not complied with the same policy and instructions that Brown was found to have violated.  Indeed, others had violated the same policy; however, it is not necessary to analyze those violations here.  The disparate treatment of Brown compared to the treatment of Jourdan is the focus of this analysis.

            As to the City's argument that the discipline imposed on Brown was reasonable related to the seriousness of the offense, I find it is convincing.  However, that same punishment should have been imposed on Jourdan.  Brown was no more responsible for taking the roller out of service than was Jourdan once he informed Jourdan of a malfunction.  Both were experienced maintenance mechanics.  Jourdan was functioning as an equipment repair specialist, Brown as a crew leader.  Brown relied on Jourdan's judgment.

            Arbitrators refuse to uphold disciplinary penalties when the employer's rules are not enforced consistently, unless there exists a reasonable basis for varying the punishment.  Variations in penalties are allowed where there exists a reasonable basis, even though a disparate treatment is charged.  Elkouri and Elkouri, How Arbitration Works, fourth edition, 1985-89 suppl. BNA 1991, at 184.

            In Alan Wood Steel Co., 21 LA 843 (1954), Arbitrator Short held that discrimination connotes a distinction in treatment and the prohibition against it requires like treatment under like circumstances, including the nature of the offense, the degree of fault, and mitigating and aggravating factors.  For discipline to be proper, there must be some degree of even-handedness.  Where management had good reason to discipline the grievant, it had good reasons to discipline two others for the same activity, and when it did not, disparate treatment was found by Arbitrator Feldman in Beth Energy Mines, 90 LA 1111 (1988).

            In establishing penalties for ordinary and gross negligence, employers are required to treat like offenses by like employees in a like manner, unless other relevant factors such as record of similar offenses, similar progressive discipline, or length of service justify different treatment.  T.W. Recreational Services, 93 LA 302 (Richard, 1989).  See also Todd Pacific Shipyards, 91 LA 31 (Alleyne, 1988), where the arbitrator cited an earlier case by Arbitrator Jones who reinstated an employee and stated that the employer violated the collective bargaining agreement when it meted out disparate discipline relative to the same conduct by employees.

            In the instant case, the evidence is substantial and supports the conclusion that Ken Jourdan and Doug Brown were equally guilty of failing to put the malfunctioning roller out of service on February 8.  Brown was punished, but Jourdan was not.  There is no evidence on the record to support the variation in treatment.  While Yvonne Deckard may have been justified in concluding that Brown was belligerent, evasive, and uncooperative, and that Jourdan was cooperative and willing to take responsibility for the accident, that does not excuse Jourdan.  He was negligent and admitted it.  Brown was negligent but vociferously argued mitigating factors.  Both were equally at fault and their demeanor during the investigation cannot serve to convict one or exonerate the other.

            There was no evidence on the record to warrant the disparate treatment; accordingly, Doug Brown should be made whole.

AWARD

            The grievance is sustained.  The eight-day suspension of Doug Brown was not for just cause.  He is to be compensated for all lost time with full restoration of all rights and conditions of employment.  Specifically, he is to be reimbursed for the eight days of lost pay at the appropriate rate.  All reference to the roller incident is to be removed from his personnel file.  All benefits, including vacation, sick leave, and PERS contributions are to be appropriately credited as if he had not been suspended.  All appropriate deductions are to be made to his reimbursement pay as they would have been had he not been suspended.

            Dated this _____ day of February 1994.

 

                                                                                                                                                                                                       Jack H. Calhoun

 

 

08-93OR

 

 

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