Title: Employer and Union
This proceeding is in accordance with the parties’ Agreement. A hearing in this matter was held on July 6, 2000 and the record closed upon receipt of post hearing briefs on July 16, 2000. The parties stipulated the issue for decision as:
The grievant, Grant Johnson, had worked for the Employer three years on the track maintenance crew at the time of his suspension for an accident that occurred while he was operating a maintenance vehicle on the tracks south of Nenana, Alaska. On September 14 Mr. Johnson was operating a track car on the mainline when another track car in front of him stopped because a fallen tree was over the tracks. Investigation of the accident indicates the grievant failed to operate his vehicle in conformance with the safety rules of which he was aware, most specifically the rule that required him to operate his vehicle so that he could stop in less than one-half the range of vision and to be especially cautious when other workers were known to be in front of his vehicle.
The Union dies not contest the grievant operated the vehicle and caused the accident. It merely states the punishment of a three week suspension was excessive in light of all the facts. The Union asks the Arbitrator to reduce the penalty to a two week suspension.
The Employer contends the penalty imposed was consistent with those imposed with comparable cases. It argues that its discipline of the grievant was consistent with the offense and the grievant’s record as well as discipline meted out to other bargaining unit employees similarly situated.
Analysis and Conclusion
It is widely accepted that arbitrators should modify penalties imposed in the discretion of management if, and only if, an abuse of that discretion is proven by evidence presented. The classic statement of this position was made by arbitrator Whitley P. McCoy:
Stockham Pipe Fittings Co., 1 LA 160, 162 (1945).
The Union contends the penalty imposed was inconsistent to those imposed in like cases and, therefore, it carries the burden to prove this contention. The parties submitted joint exhibits that indicate discipline imposed in similar cases (J10, 11, 12 and 14).
The Union argued Mike Ault was only given a 3 day suspension for a comparable violation. However, this penalty was agreed to and imposed only “on a non-precedent basis” and the memo is signed by a Union representative (J14). Accordingly, the Arbitrator cannot consider this disciplinary action.
The Union also noted that Pat Vogel only received a 10 day suspension for a track car collision. After examining the record, the Arbitrator finds the incidents are not comparable in that there is no indication that Mr. Vogel’s accident resulted in a lost time injury to another employee (J10) as was the case in Mr. Johnson’s accident.
The Union noted in its brief that the offenses of employees Hornberger and Bernath, who also received 21 day suspension, were aggravated by drug and alcohol issues. It maintains that drug and alcohol issues did not similarly aggravate the grievant’s offense. The Arbitrator has reviewed the only evidence in the record regarding these two employees and finds no reference to drug or alcohol as an aggravating factor in the imposition of their suspensions (Memo of 11/9/98 and 6/26/92; J11). Therefore, these two cases cannot be considered by the Arbitrator.
The Union also pointed out that employee Steve Glessing was only given a 30 day suspension for narrowly missing a train while operating a track car for the second time in four months. However, a review of the letter of suspension of January 13, 1995 (J11) indicates his penalty was reduced from 60 to 30 days because his track car license was revoked for two years. Also, there was no indication in this notice that an injury to another employee was involved as it was in the incident for which Grant Johnson received his 21-day suspension.
The Union called attention to the discipline of Paul Turner. In 1990 Mr. Turner was suspended for 18 days for a track car accident and in 1991 he was suspended for 30 days for another track car collision. The Union argues that he received less discipline than he should have given his prior discipline for drug and alcohol use.
The Arbitrator does not find the discipline given Mr. Turner for drug and alcohol use is any more aggravating a circumstance than the fact that the grievant caused a loss time injury to another employee due to his collision.
In the final analysis, the Union has failed to prove by clear and convincing evidence that other employees were given lesser discipline for comparable or more serious incidents. Therefore, the Arbitrator has no basis on which to find the Employer was arbitrary or discriminatory in exercising its discretion to suspend the grievant for 21 days. Grievance denied.
1. The Alaska Railroad Corporation did not violate the collective bargaining agreement (Section 28.03) when it suspended Grant Johnson without pay for a period of twenty-one days.
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