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Title: Employer and Union
Date: September 14, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 151

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            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:

Did the Alaska Railroad Corporation violate the terms of the collective bargaining agreement (Article 28, Section 28.03) when it suspended Mr. Grant Johnson without pay for a period of twenty-one days.

Provision

Section 28.03 Progressive Discipline:  The parties subscribe to the principles of progressive discipline.  Discipline will be applied in a fair and equitable manner and consistent with the nature of the offense and the employee’s record.

Background

            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:

Where an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty.  If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it.  (Emphasis added)  The mere fact that management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had had the decision to make originally, is no justification for changing it.  The minds of equally reasonable men differ.  A consideration which would weigh heavily with one man will seem of less importance to another.  A circumstance which highly aggravates an offense in one man’s eyes may be only slight aggravation to another.  If an arbitrator could substitute his judgment and discretion for the judgment and discretion honestly exercised by management, then the functions of management would have been abdicated, and unions would take every case to arbitration.  The result would be as intolerable to employees as to management.  The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been abuse of discretion.

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.

AWARD

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.

 

 

___________________________________
Philip Kienast
September 14, 2000
Bothell, Washington

 

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