Title: Los Angeles County Metropolitan Transportation Authority and Amalgamated Transit Union, Local 1277     
Date: January 7, 2000
Arbitrator: Allen Pool
Citation: 2000 NAC 132

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

Amalgamated Transit Union, Local 1277            )

                                                                        )                 BOARD OF ARBITRATION

- and -                                                              )

                                                                       )               

Los Angeles County Metropolitan                      )                   AWARD AND OPINION

Transportation Authority                                   )                    

                                                                       )

(Involving  Discharge: Geoffrey Springer            )                       January 7, 2000

            Case A99-032                                      )

___________________________________  )

            This Arbitration arose pursuant to Agreement between the Amalgamated Transit Union, Local 1277, hereinafter referred to as the "Union", and the Los Angeles County Metropolitan Transportation Authority, hereinafter referred to as the "Employer", under which C. ALLEN POOL was selected by the parties, through procedures of the CALIFORNIA STATE MEDIATION AND CONCILIATION SERVICE, to serve as the third member (neutral arbitrator) of a Board of Arbitration, hereinafter referred to as the “Board”, as provided for in Article 20 of the Agreement.  The Agreement specifies that the neutral arbitrator selected under Article 20 shall serve as the Chairperson of the Arbitration Board and that a written decision or award shall be by a majority of the Board members and shall be binding on the parties.

            The Hearing was held in Los Angeles, California on September 29, 1999 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments.  The witnesses were sworn and a written transcript was made of the hearing.

Board of Arbitration Members:

Chairperson:                  C. Allen Pool, Neutral Arbitrator

Union Member:             Neil H. Silver, President ATU Local 1277

Employer Member:            Gary Staheli, Labor Arbitration Specialist, Los Angeles MTA

APPEARANCES

For the Union                                                                            For the Employer

Linda Lu Castronovo, Esq.                                          Robert Kendrick          

Neyhart, Anderson, Freitas, Flynn & Grosboll                        Labor Arbitration Specialist

600 Harrison Street, Suite 535                                                Employee Relations

San Francisco, CA 94107-1370                                     Los Angeles MTA

(415) 495-4949                                                              One Gateway Plaza

                                                                                    Los Angeles, CA 90012-2952

                                                                                    (213) 922-6224

ISSUE

Did the Employer have just cause to discharge Geoffrey Springer?  If not, what shall be the remedy?

FACTUAL BACKGROUND

            The Grievant was a six-year employee with the Los Angeles County Metropolitan Transportation Authority.  His job classification was Service Attendant. His duties included cleaning and servicing the MTA buses as they came in off their routes. Two to three Service Attendants are usually assigned to the fueling station during a shift.

The Grievant’s  primary work station was the Division Five fuel station where buses are emptied of trash, scrubbed down, and serviced for their next run.  Servicing the buses consist of fueling the buses, changing the oil, and lubrication.  His duties also included washing and cleaning the bus parking lanes by soaping the lanes and then hosing the lanes with water.   After cleaning and servicing, the buses are parked in the yard where they will be ready for their next run.  This is referred to as Rollout.  At Rollout, at least 182 buses depart from the yard.  The engines of all the buses ready for Rollout are started commencing at 3:00 a.m.  Rollout takes place between 3:00 a.m. and 6:30 a.m.

The Grievant had worked on the Third Shift for at least five of his six years with the Employer.  The Third Shift reports for duty at 10:00 p.m. and goes off duty at 6:00 a.m. the next morning.  At the time of incident in question, the Grievant was working at the fuel station at the Division 5 yard.  He was assigned to Division 5 approximately two months prior to the incident.  Previously, he was working the Third Shift at Division 7.

When reporting for work at the start of a Third Shift at 10:00 p.m., the 15 or so members of a shift are given their first assignment of the shift by the shift leader.  On the night of the incident, the Shift Leader was Gerri Henderson.  Lunch break for the Third Shift is from 2:00 a.m. to 3:00 a.m.  At the start of the lunch break, the Shift Leader gives the shift members their second assignment for the remainder of the shift.  The shift assignments, for both first and second, are sometimes written and sometimes given verbally by the Shift Leader. 

The incident, which led to the Grievant’s discharge, occurred on the morning of February 24-25, 1999 during the last hours of the Third Shift.   At the start of the lunch break, 2:00 a.m. or thereabout, the Shift Leader told the Grievant that his second assignment after lunch was to clean the parking lanes at the fuel station.  The Grievant finished his lunch at 3:00 a.m. and completed the assignment at about 3:25 a.m. 

Since the next set of buses were not due to arrive for several minutes, he decided to await their arrival inside of Bus No. 3578 which was parked in Lane No. 1.  It was the nearest bus to the fuel station.   The location of the bus gave him a clear view of the fuel station.  It also enabled him to see the next set of buses as they arrived at the station from the “Vault”.  All incoming buses must stop at the vault where the fare money is taken from each bus before cleaning and servicing.  The vault is closed from 3:00 a.m. to 3:30 a.m. and the incoming buses must wait at the vault until it opens at 3:30 a.m. before proceeding to the fuel station.    

From where Bus No. 3578 was parked in Lane 1, the Grievant could hear the intercom if it was being used.  This was also the location where the shift leader would expect him to be in case of an emergency or if he was needed for some other reason.  The engine of Bus No. 3578 was running with its exterior lights on.  The interior lights were turned off.  The windows of the bus are tinted.   The Grievant explained that with the interior lights off he was able to see things outside of the bus with greater clarity.  The employer acknowledged the common practice of employees waiting inside a bus during inclement weather with the testimony of Mr. Karakowski (Transcript, pp 41-42) and with Mr. Barker’s Level 2 report (Joint Exhibit 22).  It should also be noted that the fueling station is an open-air facility.

On that February night and morning, the outside temperature was cold.  In addition to cleaning the parking lanes after lunch at 3:00 a.m., the Grievant had earlier washed and hosed down the parking lanes.  This left him both wet and cold.  As part of his clothing that night, he was wearing a large “Snowboarder’s Jacket”.  This type of jacket is long in length and has a large hood that can completely cover the head.

When he boarded the bus, the Grievant positioned himself in the Wheelchair Seat on the wall opposite the driver’s side. The seat is back a short distance from the front of the bus.  The Wheelchair Seat is approximately 4 ½ feet in length and 18 inches wide.  The seat itself and runs parallel to the wall of the bus.  A second Wheelchair Seat of the same dimensions is located just behind the driver’s seat.  Positioned in the Wheelchair Seat behind the driver’s seat was another service attendant, Ms. Thomas.

Sometime between 3:40 a.m. and 3:59 a.m., the shift supervisor, John Karakowski, came aboard the bus.  He had been out and about the yard looking for the other service attendant, Ms. Thomas, and noticed the one bus, among all the others, with no interior lights turned on.  He boarded the bus, spied Ms. Thomas in the Wheelchair Seat behind the driver’s seat, and called to her.  He testified that when she did not respond, he pulled back her coat and touched her arm.  With that, she awoke and sat up.  A verbal exchange between Mr. Karakowski and Ms. Thomas then ensued.  The result was that Mr. Karakowski suspended her, on the spot, without pay for sleeping during working hours.  He also ordered her to punch out and leave the property (Union Exhibit No. 3).

Mr. Karakowski then turned to the Grievant whom he had observed positioned in the other Wheelchair Seat on the opposite side.  At this point, there was a conflict in the testimony of Mr. Karakowski and the Grievant regarding the position of the Grievant in the Wheelchair Seat.  Mr. Karakowski testified the Grievant was horizontal or prone in the seat with his knees pulled up in a manner similar to the fetal position and asleep with his jacket over his head.  

The Grievant testified that he was sitting up in the seat, facing forward but in a slouched position with his right arm on the window sill with his body stretched out and that the hood was pulled up over his head in an effort to stay warm.   He also testified that he was awake and heard the entire exchange between Mr. Karakowski and Ms. Thomas.  He testified that he said or did nothing during the exchange because the matter was none of his business.  Regardless of whose version is correct, Mr. Karakowski told the Grievant he was going to be written up and ordered him to return to work. 

Later that morning, Mr. Karakowski wrote a memo to his superior, Mr. DiNuzzo, Division Five Maintenance Manger, stating that he had found the Grievant lying down in a prone position on the Wheelchair Seat on right side of the bus with the jacket over his head and asleep.  In the memo, Mr. Karakowski wrote that the Grievant woke up after he, Mr. Karakowski, uncovered his head.   The Division Manager, Mr. DiNuzzo, acting solely on the information provided by Mr. Karakowski and without any  investigation, made the decision to discharge the Grievant.  Mr. DiNuzzo testified that he did not feel further investigation was necessary (Transcript p. 101).  

At the Level One Hearing, Mr. DiNuzzo, for the first time, talked with the Grievant and listened to his version of the incident.  At the conclusion of the Level One Hearing on March 5, 1999, Mr. DiNuzzo informed the Grievant that he had no choice but to discharge him.  At the same time, Mr. DiNuzzo handed he Grievant his final check and asked for his badge.   A Level Two hearing were held on March 31^st wherein the Senior Employee Relations Representative, E. David Barker, upheld Mr. DiNuzzo’s decision to discharge the Grievant.  Mr. Barker stated that “The discipline assessed is approprite under the circumstances (Joint Exhibit 22).  A grievance was filed which led to this Arbitration. 

EMPLOYER’S POSITION

            There was just cause to discharge the Grievant.  He was asleep on the job.  He willfully and intentionally sought out a place to sleep.  Sleeping on the job is a serious offense and violation of Bulletin 95-101.  He was aware of the policy, the rule and the possible consequences for its violation.  The discharge was for just cause.  Therefore, the grievance should be denied.

UNION’S POSITION

            There was not just cause to discharge the Grievant.  He was not asleep on the job.  An investigation would have shown that he was not asleep on the bus.  The Employer failed to prove any misconduct.  Therefore, the grievance should be sustained.

DISCUSSSION

            As a preface to the discussion of the issue, a few comments are appropriate with regards to (1) the “No Sleeping Policy” expressed in Bulletin 95-01 and (2) the Just Cause Standard.   It was clear, throughout this arbitration, that the Employer’s “No Sleeping Policy” was not an issue.   The evidence record showed that the Union recognizes the Employer’s right to promulgate and enforce reasonable rules and regulations relative to employee conduct.  Evidence of this can be found in the Union’s January, 1999 newsletter to its members wherein the Union’s President made it clear that “management’s right to make policy is recognized and supported by decades of precedent.”  In the newsletter, the President made it clear that unit members are expected to comply with the fundamental rules of conduct, including no sleeping on the job.  His caveat to the members was very specific: failure to comply puts at risk one of the most important parts of an employee’s life – his/her job.  “Don’t jeopardize your career” (Employer Exhibit No. 6).

            The “No Sleeping Policy” as expressed in Bulletin 95-01 was first issued by the employer on August 8, 1995 (Employer Exhibit No. 2).     It was revised and issued again on September 9, 1998 (Employer Exhibit No. 3):

                 “SUBJECT:            SLEEPING DURING WORKING HOURS

Sleeping during working hours, except during an authorized break and/or lunch period, is a violation of the Authority’s Rules and Regulations.

Sleeping during working hours is considered a serious violation and will subject an employee to discipline, up to and including discharge, even for a first offense.

Effective September 9, 1998, this bulletin will be strictly enforced.

                                                Richard L. Hunt

                                                Chief Maintenance Officer”

The revised Sept 9^th bulletin was exactly the same as the first except that the first version contained a definition of sleeping: “Sleeping is defined as sitting or lying down/reclining with eyes closed” (emphasis added).

            The wording in Bulletin 95-01 makes it clear that termination is not automatic on the first offense.   There have been cases where the Employer first considered termination and then, because of mitigating circumstances, ended up imposing a discipline less than termination (Joint Exhibits No. 6, 10, 11, 12, and 17).  The testimony of Richard Hunt, now the Deputy Executive Officer for Transit Operations, was very instructive: “So those are two cases where we initially considered termination and which we ended up settling for less than termination.  We didn’t just blanketly say everyone who is caught sleeping absolutely must be terminated (Transcript p. 109)”.  On cross-examination, Mr. Hunt testified that on the question of whether to discharge for sleeping, “I would review everything.  We don’t go just on what the supervisor says.  We need to look at the facts surrounding the incident that led to the discipline, whatever that was (emphasis added).  The bulletin permits it (a discipline lesser than discharge) and the policy permits it” (Transcript pp. 113-114).         

            The Neutral Arbitrator’s comments concerning the just cause standard are intended to be instructive. The standard defines misconduct or misbehavior and protects the employee from unfair treatment.  However, the standard is not some free-floating notion without a set of referents.  It accords the employee due process rights which include notice that the infraction may or will result in disciplinary action.  It requires that the rule be reasonable and that a fair investigation be conducted.  Due process also requires equal treatment and requires that the penalty itself be reasonable.  However, the one test of all those that can be applied and the one which is nearly inviolable, is that of adequate proof of an infraction, because if no infraction has been proved, then no penalty is just (emphasis added).

            The evidence record did not support the Employer’s charge that the Grievant was asleep on the bus. First, a person the size of the Grievant would not fit comfortably in a prone, fetal position on the Wheelchair Seat as alleged by Supervisor Karakowski.  Even the Employer believed it would be a very uncomfortable position to be in (Transcript p. 157).  More believable was the Grievant’s version that he was “slouched” in the seat and encased in the Snowboarders Jacket because he was cold and wet. 

            The most significant factor was Supervisor Karakowski’s testimony that he did not see or hear any visible signs that the Grievant was actually asleep.  He testified that he could not see the Grievant’s eyes.   His testimony was that he assumed the Grievant was asleep (emphasis added).   During his testimony, Mr. Karakowski used the word assumed several times.  He stated that the basis for the assumption was that the Grievant did not move or make any response during his encounter with Ms. Thomas (Transcript p. 49).  The Grievant testified that he did not jump into the conversation between the two because he is “not the kind of person to jump into a heated conversation” (Transcript p. 143).  The Grievant’s testimony was more persuasive.  Another significant factor was that if the Grievant was actually asleep as charged, Mr. Karakowski did not put him on immediate suspension and order him to punch out as he did with Ms. Thomas.  The evidence record did not support the charge that the Grievant was asleep.  There was no misconduct.  There was no infraction of the No-Sleeping Rule. Therefore, there was no basis for any penalty, much less discharge.

            Another critical element against the Employer’s case was the action of the Division Maintenance Manager, Alessandro DiNuzzo.  He was the person who made the decision to terminate the Grievant.  He testified that his decision was based on the Grievant’s being asleep during working hours and on his overall record.  He stated that the Grievant’s overall record was weighted about 40% (Transcript p. 89).  When asked what specifically it was in the Grievant’s overall record he considered, he made some vague reference to an attendance problem and some other unnamed item.  Since nothing was offered into the evidence record to support Mr. DiNuzzo’s contentions, the Neutral Arbitrator gave no weight to his contentions.

            In arriving at his decision to terminate the Grievant for sleeping, Mr. DiNuzzo apparently did not practice, in this instance, what he professed at the hearing.  When questioned on cross-examination about arriving at his decision to terminate, he testified that his practice is to interview all the witnesses at particular incidents, to conduct a full investigation of what happened.   However, he testified that in this instance he did not interview anyone other than Supervisor Karakowski prior making his decision to terminate, “Mr. Karakowski was the only person I interviewed”.  He did not interview the Grievant; Ms. Thomas; the shift leader, Geri Henderson; or any of the relief leaders on duty that night.  His testimony was, “I didn’t feel it was necessary” (emphasis added) (Transcript p. 100-101). 

            Discharge is the ultimate penalty.  Fundamental fairness requires more than a rush to judgment. Fundamental fairness, to paraphrase Mr. Hunt’s testimony, requires, at a minimum, that the person making the final decision review everything, not just go on what the supervisor says, and that he/she look at the facts surrounding the incident (Transcript p. 113).

            It is the conclusion of Neutral Arbitrator that the Employer did not have just cause to terminate the Grievant.  Therefore, the Grievant shall be returned to work immediately, all rights and benefits under the Agreement, including seniority, shall be restored to him, and he shall be made whole for all lost wages, less other income earned.

AWARD

            The Grievance is sustained.  The Employer did not have just cause to discharge Geoffrey Springer. 

REMEDY

            The Grievant is to be returned to work immediately.  All rights and benefits under the Agreement, including seniority, shall be restored to him.  He shall be made whole, less other income earned, for all lost wages.  At the request of the Union and Employer panel members, the Neutral Arbitrator retains jurisdiction over this matter to resolve any disputes that may arise concerning the implementation of this remedy.

Date: ____________________                    _______________________________

                                                                        C. ALLEN POOL

                                                                        Neutral Arbitrator and Chairperson of the

                                                                        Board of Arbitration

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