Title: Cascade County, Montana and Operating
Engineers Local 683
IN THE MATTER OF THE GRIEVANCE
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 400 )
and ) AND
CASCADE COUNTY, MONTANA. )
JACK H. CALHOUN
JANUARY 16, 1997
FOR THE UNION: FOR THE EMPLOYER
KARL J. ENGLUND RICHARD LETANG
ATTORNEY AT LAW HUMAN RESOURCE MANAGER
P O BOX 8358 COURTHOUSE ANNEX, ROOM 108
MISSOULA, MONTANA 59807-8385 GREAT FALLS, MONTANA 59401
The International Union of Operating Engineers, Local 400 (the union) through the Public Employees Craft Council and Cascade County Commissioners and the Cascade County Surveyor (the employer) are parties to a collective bargaining agreement that provides covered employees may only be removed from their jobs for just and sufficient cause. The grievant, Giles Place, was discharged on June 14, 1996, for his involvement in three separate incidents related to his operation of a backhoe. The grievance procedure was exhausted and the matter went to hearing on January 14, 1997. The parties agreed the matter was properly before the arbitrator and post hearing briefs would be filed.
The issue is whether the grievant was discharged for just cause and if not, what is the proper remedy.
RELEVANT CONTRACT AND POLICY PROVISIONS
The following provisions of the parties’ collective bargaining agreement and personnel policy are relevant to this issue in dispute:
Article 6. (of the agreement)
A. The employer may remove any employee who has served a ninety (90) day probationary period for just and sufficient cause, but not before furnishing the employee and the union personally or by registered mail with a written statement of any of the statutory or other grounds and the specific reasons for dismissal in sufficient detail to apprise the employee of the facts. This provision shall not, however, be so construed as precluding the employer from relieving an employee immediately from his/her post or place of duty or employment pending preparation and giving notice of dismissal.
B. An employee with permanent status may, in addition, appeal his dismissal through the grievance procedure.
. . .
E. The employer agrees that an employee whose work is of such quality as to justify discipline shall be specifically warned by the supervisor with the reasons stated in writing.
Section 30-8 Discipline and Discharge (county Personnel Policy Manual)
30.80 Progressive discipline will be used with a permanent (non-probationary) employee in an attempt to correct employee misconduct and/or poor employee job performance when the nature of the misconduct or job performance is not so grievous that summary discharge is the warranted action. Progressive discipline shall mean the use of progressively severe disciplinary action (verbal warning, written warning, suspension without pay, demotion where applicable, and finally discharge) to correct employee misconduct or job performance. Discipline does not need to start with a verbal warning in all situations, and may be implemented at a higher level that is deemed appropriate to the breach of discipline. Progressive discipline may also be crafted for individual situations that would best bring about the necessary change to resolve poor performance. An example would be a series of written warning letters instead of suspension without pay where suspension without pay would serve no practical purpose in resolving the performance problem. A permanent employee may be discharge for "good cause" only. Any discharge for "cause" must be thoroughly investigated and documented. Any discharge action must be reviewed by the Human Resources Manager prior to discharging an employee for "cause". Cause for summary discharge includes but is not limited to the following:
. . .
Job performance that endangers the health or life of county employees or the public;
. . .
30.83 Employees covered under specific state statutes, collective bargaining agreements or other bona fide rules and regulations shall be discharged as outlined in such statutes, collective bargaining agreement or rules and regulations.
The grievant worked as an equipment operator for the Cascade County Road and Bridge Department for approximately nine years prior to his termination. For the last three years of his employment, he operated a backhoe on a bridge crew. He had a total of 35 years experience as an operator and had never caused a lost-time accident, although he himself suffered a lost-time accident in 1964 when a negligent operator caused him to lose all four fingers on his right hand.
During his employment with the county prior to 1996, he received one warning letter in April of 1994, from his department head for insubordination toward the grievant’s supervisor, Morris Johnson. The letter stated that future acts of insubordination would result in termination and failure to follow policies, rules, regulations and procedures could lead to discipline, including termination.
On May 14, 1996, the grievant was operating a backhoe on a crew of workers who were attempting to place a large concrete pipe in a ditch. While waiting for the crew to make preparations for the placement of the pipe, he left the backhoe and got a sandwich from his lunch box. He returned to the backhoe with the sandwich and, according to him, took bites of it when he was not actively operating the backhoe. He placed the sandwich on a ledge of the cab of the backhoe during periods of activity that required him to use both hands, one on the steering mechanism and the other on the lever that controlled the bucket. He did not have the sandwich in his hand during times of activity with the steering wheel and lever.
Two fellow workers were in the ditch into which the concrete pipe was to be placed by the grievant. The lead worker, Morris Johnson, was also present and was giving hand signals to the grievant, and was, in general, the person who gives signals to operators. He and the two workers testified that they saw the grievant eating a sandwich while he was actively operating the backhoe. They said he held the sandwich in his left hand while he turned the steering mechanism. Their testimony conflicted with that of the grievant on that point.
At the end of the workday on May 14th, Johnson informed his superior, Gary Cook, who is the superintendent, about the incident that occurred that day as he saw it. He later furnished Cook with a written statement that asserted he saw the grievant eating a sandwich while operating the backhoe and placing the pipe in the ditch where the two fellow workers were working. The two workers later furnished Cook with similar statements. Cook and Johnson did a preliminary investigation of the incident by talking to the two workers who were in the ditch during the time in question. The investigation led them to conclude there were two similar incidents involving the grievant that had occurred within three weeks of the May 14th incident.
On May 15, 1996, the department head, Don Herren, County Surveyor, issued a memorandum to the grievant suspending him with pay pending the investigation of the May 14th incident. The suspension was for his actions that were believed to be unsafe. The grievant was directed to write his version of the incident and return it to his supervisor.
The grievant complied with Herren’s directive by furnishing his written statement. In it he denied operating the backhoe while eating a sandwich. He contended it was impossible to operate the two separate mechanisms, the steering knob and the bucket lever, with a sandwich in his hand. He acknowledged he ate on the sandwich while he was waiting for signals and a request to place the backhoe in active operation. He stated he began eating the sandwich before he placed the pipe in the ditch, but he put it down when he had to use both hands to operate the machine. After the pipe was in the hole and he was awaiting further instructions, he again ate on the sandwich. When the pipe had to be reset, he again laid the sandwich down while he operated the backhoe.
The investigations of the May 14th incident uncovered the two other incidents involving the grievant. On April 24, 1996, the grievant was operating the backhoe at a job site where other members of the crew, including lead worker Johnson, were also present. During the course of the day, according to the grievant, one of the crew walked under the backhoe bucket. The grievant was receiving hand signals from Johnson and lowered the bucket in compliance with Johnson’s instruction at the time the crew member was underneath it. The bucket struck the member, but did not seriously injure him. The member did not file an accident report nor did he report the incident to his supervisor as required by county policy. Johnson, however, told the assistant superintendent who declined to take further action on the matter.
The two crew members and Johnson all testified that Johnson was not giving signals to the grievant during the incident that happened on April 24th. The employee who was struck by the bucket said he gave the grievant a signal to stop before he walked under the bucket. All said no one was giving the grievant signals to move the bucket at the time he lowered it.
The other incident involved in this case occurred on May 9, 1996. One of the crew members was engaged in attaching a chain to the bucket of the backhoe that the grievant was operating. The grievant moved the backhoe into position for the crew member to attach a chain to the bucket. When the bucket swung into position and stopped, the crew member reached and attached the chain. As he did so, the bucket moved causing the chain to catch the crew member’s gloved fingers underneath it. He pulled his hand out of the glove and was not injured. According to the grievant, he was looking at Johnson who was giving him signals. The grievant only moved the bucket when Johnson told him to do so.
According to the two crew members and Johnson, Johnson was not giving signals to the grievant on May 9th. The grievant caused the bucket to move prematurely and caught one of the crew member’s fingers.
The fingers of the crew member involved in the May 9th incident were not injured and no reports were filed over the matter. The crew member testified it was not a big deal.
On May 22, 1996, the department head issued a letter to the grievant advising him of his pending termination. He concluded that the grievant had operated the backhoe in such a fashion as to cause coworkers to narrowly escape serious injury on two occasions. He also concluded that the grievant had increased the chances for an accident when he operated the backhoe and ate a sandwich at the same time, both while attempting to put a pipe in a ditch where coworkers stood. He cited the grievant as being in violation of the county policy that prohibits job performance that endangers the health or lives of county employees. The letter gave the grievant an opportunity to show mitigating circumstances regarding the three incidents.
The grievant responded to the letter of pending termination on May 31, 1996. He denied any wrongdoing and specifically denied operating the backhoe in such a manner as to cause fellow workers to narrowly escape serious injury . He contended he was taking hand signals and directions from Johnson, who did not give standard signals, thereby causing the grievant to pay extra attention. He again denied he was eating and operating the backhoe at the same time. He contended it was physically impossible to do so. He stated both of his hands were on the controls and the sandwich was on the shelf when he was operating the backhoe. He pointed out there was no accident that happened and it was common practice for crew members to eat and drink while operating equipment, including Johnson, whom he asserted had a personal grudge against him. The grievant alleged the two incidents involving minor injuries would not have occurred if Johnson had properly performed his duties as lead man. If Johnson believe the grievant was performing an unsafe act, it was his responsibility to stop the operation and address any unsafe condition. The grievant went on to state that since he did not receive written warning about the three incidents, the county was in violation of the collective bargaining agreement.
On June 14, 1996, the department head issued a termination letter to the grievant. He reiterated what he had written the grievant earlier in the pending termination letter, and he indicated the three incidents showed a clear pattern of reckless operation in violation of county policy.
As lead man on the crew on which the grievant worked, Johnson was responsible for safety. When he believed he had observed the greivant operating the backhoe and eating a sandwich at the some time, he did not stop him. In the April 24th incident, the crew member who was hit in the head by the backhoe bucket was not wearing a hard hat. The department head believed he should have had one on. Only since May of 1996, has the county implemented a policy mandating that hard hats be worn. There were no written reports to document the incidents on April 24th and May 9th. The department head testified there should have been reports made.
Prior to the incidents in question here, the grievant had never been warned, suspended or otherwise disciplined for operating equipment in an unsafe manner. The county has no written policies as to who gives hand signals to operators. There were no common practices that employees have been trained in regarding hand signals. Since May of 1996, the county has posted uniform hand signal information. Prior to that time, there was no uniform system.
By the time the May 14th incident was reported to the road and bridge superintendent, the job was over; therefore, had he tried he would not have been able to reconstruct the scene to determine whether what he was told by the crew members was true.
Although the crew member who was hit by the backhoe bucket said he signaled the grievant he was going under the bucket, he was unable to say that the grievant acknowledged his signal. He did not see the bucket coming down before it hit him, others told him. He did not file a report about the incident because he did not feel it was serious. Johnson had been giving hand signals to the grievant earlier, according to the crew member who was hit.
The grievant was never told by anyone not to have his lunch bucket in the backhoe. He was never told he could only eat at lunch time.
POSITION OF EMPLOYER
The employer contends the grievant was discharged for just cause based upon the three incidents in which he was the backhoe operator in three incidents involving careless and negligent operation of the backhoe with potential harm to other employees. After being given the opportunity to offer an explanation and mitigating circumstances, the grievant failed to submit facts that could be corroborated.
In reviewing each of the three incidents, the employer concluded it was an uncontested fact that the grievant was the backhoe operator each time. In two of the incidents, the grievant errantly operated the backhoe and injured two different employees. In the other incident, he placed two employees in potential harm by trying to eat and operate the backhoe at the same time.
The employer’s investigation into the three separate incidents caused it to conclude that the grievant’s fellow employees were telling the truth and the grievant was not. The employee who was struck on the head by the backhoe bucket testified he gave the grievant a signal to stop before he walked under the bucket. Testimony from two other crew members corroborated that testimony. Their testimony also was to the effect that Johnson was not in the immediate area and was not giving signals to the grievant at the time of the accident. Johnson also testified that he was not giving signals to the grievant at that time.
The incident that occurred on May 9th was caused when the grievant caused the bucket to move upward while a crew member was attempting to attach a chain to it. As a result, the crew member’s gloved hand was caught between the chain and bucket. Both crew members and Johnson testified that Johnson was not giving signals to the grievant at the time the accident happened.
As to the May 14th incident, both Johnson and a crew member testified they saw the grievant eating a sandwich while he was operating the backhoe. Both had a clear view of the greivant from their positions.
Although the grievant stated it was physically impossible to hold a sandwich while gripping the steering knob and operating the controls of the backhoe, it was shown at hearing that it was in fact possible to do so. When the grievant was asked by the employer’s representative to demonstrate how it was impossible, he refused to do so. Both Johnson and a crew member testified it is physically possible to hold a sandwich and operate the steering mechanism.
The union was unable to present one witness or document to prove the incidents did not happen the way Johnson and the crew members testified they happened. They, as opposed to the grievant, have nothing to gain or lose by testifying. The grievant, on the other hand, had his job to lose.
The grievant was afforded due process. When the employer’s officials heard of the May 14th incident, they conducted an investigation and decided the grievant should be suspended with pay pending further investigation. He was suspended and was directed to write his version of the May 14th incident.
On May 20, 1996, the department head met with the grievant and the union representative to review the May 14th incident and the May 9th and April 24th incidents which had been discovered during the investigation. The grievant was given the opportunity to give his account of all these incidents.
After the May 20th meeting, the department head had the backhoe inspected by mechanics for possible defects. They found none. The follow-up investigation revealed no new facts, except a warning letter in the grievant’s file issued in April of 1994 for insubordination. The letter also warned the grievant of the possible consequences of future acts of insubordination as well as other acts contrary to policy, rules, regulations and procedures. The greivant was placed on notice that further breaches of discipline would lead to further discipline including discharge.
On May 22, 1996, the department head issued a letter to the grievant informing him of the results of the employer’s investigation. All three incidents were in violation of county policy and there was just cause to discharge him. He gave the grievant one last opportunity to produce contrary evidence. The grievant responded but stated no new facts to reconsider.
The language of Article 6, Section E of the agreement is somewhat ambiguous. The question is whether it requires a written warning for every incident that occurs before more severe disciplinary measures can be taken. Another question is whether it requires progressive discipline prior to termination or may the employer discharge as provided for in county policy.
In construing the agreement as a whole, the employer should not be required to issue a written warning for every breach of discipline or substandard job performance. Such interpretation could lead to absurd results. The language in Article 6 should not be construed to mean an extensive progressive disciplinary process must be used. The approach the employer follows is to allow for a written warning to an employee for deficient performance or for misconduct that can be corrected through progressive discipline, but to take stern disciplinary measures when the breach calls for such action.
The employer did not know about the two later incidents until it investigated the May 14th incident. Once the incidents were discovered, the employer acted timely. It should not be precluded from tying the three incidents into a single disciplinary action.
The grievant was disciplined in 1994 and the consequences of further breaches of policy were defined for him. The county policy prohibiting job performance that endangers co-workers is reasonable. Management conducted a fair investigation into the incidents. The grievant was given an opportunity to respond to the charges. There was substantial evidence that the infractions occurred. The rules, orders and penalties were applied evenhandedly without discrimination. The penalty was reasonably related to the seriousness of the offenses and the grievant’s past record.
POSITION OF THE UNION
The union contends the discharge of the grievant should be reversed for three reasons: (1) He received no warning of poor performance prior to discharge as required by the contract; (2) the discharge of a long-term employee for three safety violations is the antitheses of progressive discipline; and (3) based on inadequate investigation and the discrepancies in the testimony, it is not certain the grievant was eating while operating the backhoe or that he was at fault in the other two incidents.
The contract requires the employer to give written warning prior to imposing discipline or discharge and it gives the employee the right to notice of deficient performance and opportunity to correct. The grievant was discharged for engaging in "a clear pattern of reckless operation" in violation of the policy against "job performance that endangers the health or life of county employees or the public." The greivant was not warned that his operation of the backhoe was reckless, negligent or in violation of rules, regulations or reasonable expectations. Because he was not warned, the employer violated the contract.
Although an arbiter may construe ambiguous contract language, he may not disregard or modify plain and unambiguous language. In this case, the contract language is clear--there can be no discipline or discharge for poor work quality without a warning and opportunity for the employee to make amends.
The requirement of a warning implicates the notion of progressive discipline in that it requires at least one attempt at corrective discipline prior to termination. Although implicit in this contract provision, the principles of progressive discipline are explicitly endorsed in the employer’s policies.
To discharge the grievant without warning where he had no previous disciplinary actions for safety violations or poor performance is inconsistent with the principles of progressive discipline and the employer’s policy. It is also in opposition to arbitral precedent.
The grievant was a nine-year employee of the county who had never caused an accident and had never been counseled or warned about his lack of ability to safely operate heavy equipment. He had 35 years of experience during which time he had never caused a lost-time accident. He himself was the victim of another worker’s carelessness and is constantly reminded of the dangers of unsafe habits.
The employer did not have exacting safety standards that it enforced. Thus, it is not fair for it to discharge the grievant for safety related reasons without a warning and based in large part on two incidents that were considered so insignificant that employees and one management official did not even bother to report them.
Arbitrators overturn penalties that are assessed without clear and timely warning where the employer over a period of time condoned the violation of the rule. Lax enforcement of rules may lead employees to believe the conduct in question is sanctioned by management. Before management’s action can be upheld, there must be assurances the act was deliberate, not merely technical, and that the employee was on notice, at least by virtue of a past practice or rule enforcement, that he was inviting discipline by his conduct.
It is not clear that the grievant was in fact reckless in operating the backhoe. The manner in which the investigation was conducted by the employer’s managers is suspect. It was unfair for them to gather the employees together and ask for complaints against the grievant. The employees were bound to state not what they remember, but what they heard someone else say he remembered.
There were inconsistencies in the testimony about the May 14th incident. One witness testified that the only way the grievant could have driven the backhoe and eat at the same time would be for the grievant to operate the control lever with the hand in which he was holding the sandwich. Yet, the grievant has no fingers on his right hand, the hand used to operate the control lever. One witness testified the backhoe was in place and ready to position the concrete pipe in the ditch when the grievant got out to get his sandwich. Thus, the grievant had to move the backhoe into position after he got his sandwich, meaning the grievant ate and operated the backhoe as it moved several feet.
There are important questions about who was at fault during the April 24th and May 9th incidents. The two crew members said they did not effectively communicate with the grievant about what they were doing. Both admitted they did not receive acknowledgment from the grievant that he could see them or was aware of their plans. While it is important for the operator to keep watch, it is equally important for those working close to the backhoe to know the operator is informed about what they are doing.
The collective bargaining agreement requires notice and opportunity to correct deficient performance prior to discharge. The employer’s policy unequivocally endorses the principle of progressive discipline. There was no progressive discipline in this case. There was no egregious conduct that would have warranted summary discharge, even if the employer’s contentions were proven, which they were not.
The issue raised by this dispute is whether the employer had just cause to discharge the grievant. The employer had the burden to show clearly and convincingly proper cause existed for terminating the grievant.
The collective bargaining agreement contains a just cause provision. It also contains a provision that requires an employee, whose work is of such quality to justify discipline, be specifically warned and given reasons therefor in writing. The employer’s personnel policy sets forth the requirement that progressive discipline be used with permanent employees to correct misconduct or poor job performance, unless such conduct or performance is so grievous as to warrant discharge.
Not only was it the employer’s burden to show clearly that the grievant was guilty of wrongdoing, it also had to show it complied with the contract provision that requires specific actions before discipline for deficient work performance can be imposed. Moreover, the employer had the burden to show either that progressive discipline was not proper under the circumstances or that principles of progressive discipline were in fact followed.
The employer agreed to be bound by the procedural requirement of Article 6, Section E. In doing so, it limited its right to terminate employees whose work quality came into question without complying with that requirement. The language of the provision is clear and unambiguous. An employee whose work is called into question so as to warrant discipline, must be specifically warned with the reasons stated in writing. Two key words were used by the parties in writing the provision, "work" and "specifically."
Words in a contract should be given their ordinary and popular meaning unless there is an indication the parties used them in a different sense or meant that they have a special meaning. By using the word "work" the parties distinguished the behavior of employees who are in the process of completing their assigned tasks as defined by the employer, from the personal behavior of employees toward their supervisor, fellow employees and others. The distinction is between work-related acts and non-work-related acts. The act of insubordination is a non-work-related act, it has nothing to do with the quality of work or any job performance measure. The mishandling of equipment so as to endanger others is directly related to job performance and the quality of that performance.
The warning that was issued to the grievant in 1994 for insubordination cannot be deemed to be sufficient to satisfy the requirement of Article 6, Section E. First, the grievant’s work quality was not called into question in 1994. It was his personal behavior toward a supervisor. Second, the warning cannot be said to be specific with reasons stated in writing. To satisfy that requirement, the warning would have had to be specific to the very acts of deficient performance in which he allegedly engaged. A general warning to the effect that the grievant could not violate a rule, regulation or policy in the future without facing possible termination does not satisfy the specificity requirement of the provision.
At no time prior to his termination was the grievant specifically warned that his operation of the backhoe was deficient or in any manner in violation of rules, regulations or employer expectations. Moreover, the grievant was not afforded the opportunity to make amends. Seemingly, the purpose of the contract provision is to ensure that where an employee’s work is questioned to the extent the employee may be disciplined, the employee be informed with specific reasons so that the employee is well-apprised of what is on the mind of the supervisor and what the supervisor’s expectations of the employee are.
Progressive discipline is rooted in the concept of just cause. In the instant case, it is expressed in the employer’s personnel policy manual. While the employer argues that it followed progressive discipline principles in imposing discipline on the grievant, and in any case, the nature of the grievant’s job performance endangered lives, therefore, progressive discipline is not applicable, the facts of this case do not support that argument.
The grievant had nine years with the employer without ever causing an accident or ever having been warned about the way he operated heavy equipment. Both the principles of progressive discipline and, more importantly in this case, the collective bargaining agreement, required that he be warned about his shortcomings if the employer thought he was operating equipment in an unsafe manner.
The facts also support the conclusion that the grievant’s operating the equipment did not amount to such egregious or grievous conduct that summary discharge was warranted. Even taking the facts as the employer urges, does not support the conclusion that the grievant engaged in such flagrantly bad conduct that progressive discipline would not likely result in corrected behavior. Moreover, the facts of the grievant’s conduct are not nearly as straight forward as the employer maintains. It is not at all clear from the conflicting testimony given that the grievant was guilty of any misconduct. The resolution of the dispute does not rest, however, on the determination of whether the grievant engaged in such misconduct. Even if he was operating the equipment recklessly, the contract requires that he be specifically warned with the reasons in writing.
The employer was not strict in requiring employees to follow safety rules. Hard hats were not required. Accidents on the job were not always reported. Standard hand signals were not used. Employees were permitted to eat and work at the same time. The two incidents involving very minor injuries for which the grievant was held accountable were considered so unimportant by the lead worker that he did not bother to report them. It would be patently unfair to impose discipline on the grievant for violating safety standards which were vague at best and routinely ignored, even in the absence of a plain and unambiguous contract provision mandating a warning before discipline is imposed where work quality is the primary focus.
The grievance is sustained. The employer did not have just cause to discharge the grievant. The employer is hereby ordered to reinstate the grievant to his former position with full back pay and benefits minus any interim earnings. I will retain jurisdiction of this matter for 30 days from the date of the award.
Dated this ____day of March 1997.
Jack H. Calhoun