Title: City of Portland and Municipal
Employees Local 483
THE MATTER OF THE
Held December 17, 1993
FOR THE UNION:
Nicholas C. Kies
Municipal Employees Local 483
S.W. Fifth Avenue
310 N.E. 20th Avenue
Portland, OR 97232
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.
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.
The following provisions of the parties' collective bargaining
agreement are relevant to the issue in dispute:
SAFETY - SANITATION
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.
. . .
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.
. . .
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.
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
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.
. . .
DISCIPLINE AND DISCHARGE
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.
. . .
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.
. . .
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.
. . .
Level Five -- Arbitration:
. . .
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
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
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
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
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
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
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
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
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.
OF THE PARTIES
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
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
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 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.
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
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
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
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
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.
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
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028