Title: PP&L Co and Teamsters Local 1600
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
(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.
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,
and overall ratings of Satisfactory or, for the last two, Exceeds Expectations.
1994-95, the Company, which is a major utility with approximately 6,200
employees, experienced a significant increase in safety violations, including
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”;
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.”
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.
After the issuance, training, and enforcement of the revised policy, the
Company eventually experienced a notable decrease in backing accidents.
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
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
Neither hearing Huegel’s or Ettle’s yell nor seeing Huegel’s
vehicle, Demyan backed into it, resulting in limited damage to the Blazer
and no visible damage to the bucket truck.
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.
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.”
5/21/97, Demyan filed a grievance, which the parties processed via the
prescribed procedure in the collective bargaining agreement (“CBA”) to the
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.”
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.
-- COMPANY-UNION RELATIONS
Section 5. Functions of
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….
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….
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?
If not, what shall the remedy be?
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.”
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.
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.
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
this case the arbitrator need not determine whether the policy is facially
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.
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
the limited damage caused by the grievant
and his long, satisfactory work
cumulatively merit consideration by way of mitigation when combined with his
Thus, this is the kind of case for which the provision for individual
exceptions would have been applicable.
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
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.
The arbitrator retains jurisdiction for the limited purpose of
implementation of the remedy.
 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.
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
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
… will be added to the time in effect period that remains open from a
prior formal step.
 The Union also warned that “actions taken by the Company as stated by the revised policy will be grieved as appropriate.”
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
Specifically, the number of such reported accidents were as follows: 1995
– 45; 1996 – 28; 1997 – 27; 1998 – 17.
The site was relatively remote; the road was
little traveled, and the pole was down a steep, grassy slope from the road.
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.
 The hood was pushed in, and the fan punctured the radiator, causing the Blazer to be towed. The estimated damage was $750.
 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.
 See, e.g., DISCIPLINE AND DISCHARGE IN ARBITRATION 32 (Norman Brand ed. 1998).
 See supra note 2.
 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.
 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.
 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.
 For a similar approach, see Public Utility Dist. No. 1 and IBEW Local 125, 105 Lab. Arb. (BNA) 324 (1995)( Henner, Arb.).
 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.