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Title: PP&L Co and Teamsters Local 1600
Date: January 24, 2000
Arbitrator: Perry Zirkel
Citation: 2000 NAC 117

HEARING

            The hearing in this matter was held in Allentown, Pennsylvania, on 5/3/00.  The spokesperson for PP& L, Inc. (hereinafter the "Company") was attorney Andrew K. Williams.  The spokesperson for the IBEW Local 1600 (hereinafter the "Union") was attorney Ronald T. Tomasko.  The witnesses for the Company were vice president for strategic development Michael Kroboth, labor relations administrator Rudy Moyer, and regional manager Frank Pearn.  The witnesses for the Union were former lineman Lester Ettl, business representative Joseph Pancheri, and grievant Richard Demyan.  The joint exhibits were the collective bargaining agreement (J-1), the grievance packet (J-2), a vehicle photo (J-3), and the 1996 Responsible Behavior Program (J-4).  The Company's 7 exhibits included two videotapes (C-1 & C-2), the 5/4/97 investigation report

(C-4), the Safety Rule Book (C-5), and the 5/20/97 notice of a 2-day suspension (C-6).  The Union’s exhibits consisted of the 9/10/96 letter to the Company (U-1), the revised Responsible Behavior Program (U-2), and the grievant’s performance reviews (U-3).  With the parties' submission of posthearing briefs, the hearing closed on 5/22/00.

 

FACTS

            On or about October 1967, the Company hired Richard Demyan, who progressed to his present position of lead lineman.  His performance reviews from 1/89 thru 12/95 consistently yielded safety-specific ratings of Satisfactory, or Meets Expectations,[1] and overall ratings of Satisfactory or, for the last two, Exceeds Expectations.  

            In 1994-95, the Company, which is a major utility with approximately 6,200 employees, experienced a significant increase in safety violations, including backing accidents.

            In 1995-96, the Company modified its work rules to provide mandatory consequences for certain safety violations.  Specifically, the Responsible Behavior Program Guidelines, which the Company issued on 9/1/96, included the following revision: “motor vehicle backing accidents where traffic laws and/or safety rules/practices have been violated require that supervision issue a minimum two work day decision making leave without pay”[2]; the only exception is narrowly limited to “supervisors/managers … securing concurrence from both the appropriate department Corporate Officer and General Manager-HR&D.” On 9/10/96, the Union made clear in writing that it did not concur with the revisions, contending that “[p]re-determined time-off regardless of the facts is contrary to the basic [non-punitive] philosophy of the [original 1989] Responsible Behavior Program.”[3]

            Also in 1996, the Company provided training to all employees, including Demyan, concerning the revised rules.  The training included two specially produced videos, featuring the chief operating officer and the executive vice president.  The first video provided a quick refresher of the long-standing rules and emphasized the new additions, including the zero-tolerance-like rule for backing violations.  The second video focused on the backing rule, which included illustrations and explanations of the following summary procedures: back only when absolutely necessary; park so your first move is forward; if you must back, get out if not absolutely clear; do not create a temporary obstruction; and for certain vehicles where there is a temporary or permanent obstruction, use a second person or, if such person is not available, a minimum of three cones for the point backing system.[4]  After the issuance, training, and enforcement of the revised policy, the Company eventually experienced a notable decrease in backing accidents.[5]

            On 4/28/97, which was a day of intermittent rain, foreman Jim Kuhns assigned line leader Demyan and then lineman Lester Ettl to change the lighting arrestors at various locations with a bucket truck.  They arrived at the Lehigh Game Preserve switching site[6] at approximately 7:30 am; set the chocks and cones; had a tailboard discussion regarding the approach to the riser pole; and determined that Ettle would proceed down the hill first to get in position and then Demyan would drive the truck left across the street and back down the slope on an angle to the pole.  However, after Ettle  pulled the chocks and cones and proceeded down the hill as planned, Demyan reconsidered and decided that it would be preferable to back up slightly so as to be able to take a more sharp forward turn to the left on the road and then back down on a straight approach to avoid the risk of sliding the truck over on the wet grass.  Unnoticed by Demyan and Ettle, another line leader, Joe Huegel, pulled his S10 Blazer directly behind the truck, which effectively was a blind spot.[7]  Neither hearing Huegel’s or Ettle’s yell nor seeing Huegel’s vehicle, Demyan backed into it, resulting in limited damage to the Blazer[8] and no visible damage to the bucket truck.

            The Company’s subsequent investigation resulted in a conclusion that the accident was preventable, attributing the root cause to Demyan’s lack of visual contact with his assistant.  The report also identified the incomplete two-man tailboard and the blind-spot placement of the second vehicle as accompanying problems.

            On 5/20/97, after the investigation was completed, the Company issued Demyan a two-day decision-making leave without pay, with a two-year probationary period in effect from the date of the incident.  The notice specified that “you did not communicate you[r] intention to back up first and you did not use the other crew member to guide you in backing when you hit the other vehicle.”  It also warned that “[a]nother infraction, regrettably, may lead to termination.”

            On 5/21/97, Demyan filed a grievance, which the parties processed via the prescribed procedure in the collective bargaining agreement (“CBA”) to the present arbitration.

            His resulting performance review for the year ending 12/31/97 contained a safety-specific rating of Needs Improvement based on the “unfortunate backing accident” and an overall rating of Satisfactory.  In addition to the suggestion of “reduc[ing] accidents,” the various comments included the following: “Dick does an excellent [job] in planning his work …. [and] has all the qualities needed to be a foreman.”

            Also after the grievance, Demyan had further motor vehicle incidents on 10/14/98 and 1/25/99, and the Company issued on 6/3099 a revised policy that eliminated the mandatory penalties for safety incidents.

 

           

CONTRACTUAL PROVISIONS

 

ARTICLE II  --  COMPANY-UNION RELATIONS

 

Section 5. Functions of Management

 

            A. The Union recognizes the exclusive right of the Company to determine its operating policies and manage its business in the light of experience, business judgment and changing conditions….  However, the Grievance Procedure … shall be applicable to complaints regarding the meaning, application, interpretation or administration of any provision of this Agreement limiting the following functions of Management, which are the only ones limited by this Agreement; namely, the right to: … discipline employees for misconduct on the job or other violation of rules … for just cause….

 

            C. Other functions of Management include the right to … adopt, and revise when necessary, reasonable rules and regulations governing the operation of its business and the conduct of its employees….

 

 

 

 

 

 

 

ISSUE

            Whether the Company violated Article II Section 5 of the CBA by giving the grievant a two-day decision-making leave without pay and a two-year time in effect?[9]  If not, what shall the remedy be?

 

OPINION

            The boundaries for this determination are set by two contractual conclusions.  First, it is indisputable that the CBA accords the Company the right to adopt and, when necessary, adopt reasonable work rules.  Thus, the absence of negotiations does not render the revised Responsible Behavior Program rules null and void.  Nevertheless, the work rules are not within the Company’s absolute discretion.  According to the CBA, they must be “reasonable.”

            Second, the CBA makes relatively clear that discipline under the Company’s work rules must be for “just cause.”  This cryptic phrase is usually understood to include whether the degree of discipline was reasonably related to the seriousness of the employee’s proven offense in the light of mitigating factors, such as the employee’s record of service.[10]

            Next is the application of these boundaries to this case.  Here, the Company had reasonable justification, based on changing conditions, to review and revise its work rules.  The increasing incidence of safety violations, including backing accidents, was of consequence in terms not only of the liability of the Company but also the well-being of the employees and the public.  Moreover, the revision was not purely “no fault” or “zero tolerance”; the mandatory penalty was expressly reserved for violation of 1) traffic laws and/or 2) safety violations, and there is at least a limited provision for individual exceptions.

            Yet, within this rather broad reserved area, the automatic and deceptively severe penalty failed to take into consideration the seriousness of the offense, in terms of employee culpability and consequent injury to property or persons, and its possible mitigation, in terms of the length and quality of the employee’s service.  The prescribed penalty is deceptively severe because although only a relatively short suspension, termination looms large as possible yet pending the next step for at least two years.[11]

            In this case the arbitrator need not determine whether the policy is facially invalid[12] because, in any event, it is invalid as applied to the grievant.  This conclusion is not easily reached, requiring careful consideration of various factors.  First, contrary to the grievant’s perception, he is not without fault.  The obvious spirit of the mandatory training was to reinforce the need to think twice, or even thrice, before backing up, avoiding it wherever feasible and adopting prescribed precautions where it is truly necessary.  Yet, his violation, if any, of the specific safety rules was relatively limited, as revealed by the Company’s investigation report.  The diagnosis of the root cause as being the loss of visual contact with his co-worker is less than convincing.  The suspension notice salvages a more persuasive rationale for a safety violation in the lack of communicating his revised route to his co-worker, but it ignores the alternative – only expressed post hoc in the Company’s brief – of getting out to place cones.  Moreover, it ignores the fact that on this remote dirt road, it is not at all clear that he had reason to know of the temporary obstruction represented by the other car.

            The lack of any punishment for his other crew member, who had corollary responsibility under the revised policy, reinforces the arguable unforeseeability of Huegel’s action.  Similarly, the lack of any punishment for Huegel, who was found to be a contributing factor in the Company’s investigation report, reflects the need to consider individual factors.

            Moreover, the limited damage caused by the grievant[13] and his long, satisfactory work

 

record[14] cumulatively merit consideration by way of mitigation when combined with his marginal violation.[15]  Thus, this is the kind of case for which the provision for individual exceptions would have been applicable.

            Finally, the post-grievance conduct of both the grievant (in terms of his driving record) and the Company (in terms of eliminating the mandatory penalty) is immaterial in this case.  

            On balance, the arbitrator concludes that the grievant warrants limited discipline and that the mandatory penalty was excessive in light of the specific circumstances of this case.  His grievance is partially upheld.  The Company shall reduce the penalty for the 4/28/97 incident to an oral reminder and shall reimburse the grievant for the two-days’ pay minus, if it chooses to do so, any deductible (or equivalent) in its insurance for repair of said vehicle.[16]  The arbitrator retains jurisdiction for the limited purpose of implementation of the remedy.



[1] Moreover, the Company’s safety record, which includes minor incidents, contains no reported motor vehicle incidents during this period; his last one was in 1986.

[2] The pertinent provision further clarified that this discipline applies to not only “the negligent vehicle operator,” but also “any passengers who may have broken safety rules in not assisting the effort to safely ‘back’ the vehicle.”  The policy includes a progressive discipline policy with the following four successive formal steps, each with the specified time in effect, oral reminder – 6 mo., written reminder – 12 mo., decision-making leave – 24 mo., and termination.  The guidelines include these explanations:

• Assigning the decision making leave to an infraction puts the Company in a position

to terminate an employee for a subsequent offense; it does not mandate it.

• The steps … may be repeated or sequenced as conditions warrant.

• [T]here is no “separate  track” for safety violations.

• [I]f an additional infraction occurs that requires a formal step, the time in effect

period … will be added to the time in effect period that remains open from a

prior formal step.

[3] The Union also warned that “actions taken by the Company as stated by the revised policy will be grieved as appropriate.”

[4] The Company’s Safety Rule Book specifically states: “When a second person is available, the driver is responsible to utilize the second person in the backing task.  The second person is responsible to assist and notify the driver of unsafe condition or lack of clearances until the vehicle is in the final position.”

[5] Specifically, the number of such reported accidents were as follows: 1995 – 45; 1996 – 28; 1997 – 27; 1998 – 17.

[6] The site was relatively remote; the road was little traveled, and the pole was down a steep, grassy slope from the road.

[7] Huegel had dropped a replacement lineman off at one of the other nearby crews and stopped by to remind Demyan and Ettle that they might need extra arrestors.

[8] The hood was pushed in, and the fan punctured the radiator, causing the Blazer to be towed.  The estimated damage was $750.

[9] The parties stipulated that in this context “decision-making leave” and “time in effect” refer to what are known more generally as “suspension” and “probation,” respectively.

[10] See, e.g., DISCIPLINE AND DISCHARGE IN ARBITRATION 32 (Norman Brand ed. 1998).

[11] See supra note 2.

[12] The Union’s analogy to no-fault attendance policies is not fitting in this case.  First, contrary to the Union’s citations, many arbitrators have upheld discipline imposed under such policies.  See, e.g., DISCIPLINE AND DISCHARGE, supra note 10, at 94.  Second, in some cases, the extent of the absences under such a policy as applied amounts to just cause.  Third, such policies are typically – unlike this one – a separate track.

[13] See supra note 8 and accompanying text.  The arbitrator does not mean to convey that the damage was insignificant.  First, towing the vehicle added  losses of employee time as well as the cost of towing.  Second, part of the reason for discipline is to avoid more serious damages, such as the very real possibility of serious personal injuries.  Nevertheless, a balanced view cannot regard $750 or so of damages as directly equivalent to such injuries; it is not uncommon for vehicle estimates for relatively minimal “fender benders” to  easily reach or exceed this amount.

[14] The characterization in the Union’s brief of his career as “distinguished” and  “outstanding” and that of his safety ratings as “consistently high” are overstatements.  Yet, his overall performance evaluations for the past nine years, including the year, in question have been Satisfactory or above, and his safety ratings have been almost as favorable.  Moreover, contrary to the Company’s characterization in its brief, his safety record was quite clean from 1986 to the incident at issue in 1997.  See supra note 1 and accompanying text.

[15] For a similar approach, see Public Utility Dist. No. 1 and IBEW Local 125, 105 Lab. Arb. (BNA) 324 (1995)( Henner, Arb.).

[16] To the extent that the grievant seemed not only to deny any fault but also to minimize the damages, this symbolic sharing of the economic consequences is included.  If the Company has self-insurance, it may deduct what is the prevailing amount for employers who use outside insurance.

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