Title: Sacramento Regional Transit District and
Division 256 Amalgamated Transit Union
THE BOARD OF ARBITRATION,
This arbitration arises under
the collective bargaining agreement (“Agreement”) between the SACRAMENTO
REGIONAL TRANSIT DISTRICT (“District”)
and DIVISION 256 OF THE
AMALGAMATED TRANSIT UNION, AFL-CIO (“Union”).
I was jointly selected by the parties as the impartial chairman of the Board of
Arbitration (“Board”). The District designated LARRY
M. KAZANJIAN and the Union
appointed WILLIAM J. FLYNN as
their partisan members of the Board. Article 7 of the Agreement provides that
the decision of a majority of the Board is final and binding on the parties.
The evidentiary hearing in this matter was held January 31, 2001, at the
Sutter House Hotel in Sacramento, California. At the outset of the hearing, the
parties stipulated that this matter was properly before the Board for final and
binding arbitration. Each party had a full and adequate opportunity to call,
examine, and cross-examine witnesses and to introduce relevant evidence. All
witnesses testified under oath. Grievant was present throughout the hearing. A
certified shorthand reporter attended the hearing to record the proceedings and
testimony and subsequently produced a verbatim transcript thereof. Each party
submitted a post-hearing brief, completing the record herein.
The parties stipulated that the issue to be decided is as follows:
PROVISIONS OF RELEVANT DOCUMENTS
COLLECTIVE BARGAINING AGREEMENT
March 1, 2000, through February 29, 2004.
ARTICLE 5: DISCIPLINE – COMMENDATIONS – RECORDS
Notations of one (1) year’s standing, or more, on service records of employees
will not be considered in disciplinary cases, provided, however, that
consideration of notations older than one year but not older than three (3)
years will be allowed in disciplinary cases involving preventable accidents,
drug or alcohol abuse which is clearly related to job performance.
6 – If,
upon review of a suspension or a discharge, it is found that an employee was
improperly suspended or discharged, he or she shall be reinstated to his or her
former position without loss of seniority and with all of the wages he or she
would have earned had he or she not been suspended or discharged paid to him or
her. If the review should show that a penalty was justified but the penalty
imposed was too severe, the employee shall be returned to duty as above, and
that portion of his or her lost wages which was determined to be excessive shall
be paid to him or her. It is agreed that, if it is found that the discipline was
improperly assessed, no entry shall be made on the employee’s record of such
discipline; if the discipline was properly assessed, but found to be excessive,
proper notations shall be made in the employee’s records.
7: ARBITRATION - FOURTH STEP
4 – The
issue to be submitted to the Arbitration Board shall be limited to the grievance
as submitted in writing and, unless otherwise agreed in writing, the
jurisdiction of the Board shall be limited to the determination of said issue.
The Board shall have no authority to modify, vary, alter, amend, add to or take
away from, in whole or in part, any of the terms or provisions of this
10 – The
decision of the majority of the Board shall be final and binding on the parties.
30: MANAGEMENT PREROGATIVES
1 – All
matters pertaining to the management of operations including the type and kind
of service to be rendered to the public and the equipment used, the maintenance
of discipline and efficiency, the hire, promotion, and transfer of employees and
their discharge or discipline for just cause, are the prerogatives of the
DISTRICT, subject always to such limitations thereon as are set forth elsewhere
in this Agreement.
3 – Any
claim that the DISTRICT’s exercise of any prerogative of management or
promulgation or enforcement of any rule is violative of any provisions of this
Agreement may be made the subject or a grievance or dispute.
38 - PHYSICAL EXAMINATIONS
1 – The
DISTRICT may require any of its employees to submit at any time to a physical
examination by a physician duly licensed to practice as such. SECTION 2 – The
employee shall be referred to one member of a mutually agreed to panel of
physicians specializing in the care and treatment of the illness or injury of
the employee. . . .
3 – As a
condition of continued employment with the DISTRICT, any physical examination
above provided for must reveal the physical and/or mental fitness of the
employee involved to perform his or her duties.
Should any physical examination above provided for reveal physical or mental
unfitness caused by disease, defects or disabilities of a temporary and curable
nature, and the employee involved is willing to have the cause or causes of such
unfitness treated or rectified, then, and in the event, depending upon the
particular circumstances of each case:
3/1/2000 through 2/29/2004
History: Eddie James
McKinnie, herein called “Grievant,” began working for the District in March
1989. Except for one year during which he worked as a light-rail operator,
Grievant was a full-time or part-time bus operator until August 31, 2000, when
his employment was terminated as a result of the events described below.
The record shows that Grievant was disciplined on four occasions prior to
the events at issue here.
On December 1, 1998, Grievant
received a two-day suspension for failure to make ADA announcements. On March
18, 1999, he received a reprimand for passing a coach at a bus stop. On June 16,
1999, he received a reprimand for using a cellular telephone while in revenue
service. On November 9, 1999, Grievant was suspended for 30 days for failing to
follow his supervisor’s instructions, insubordination, and unnecessary delay
of schedule. There is no evidence that Grievant filed a grievance to protest any
of the prior discipline. The record also shows that Grievant received a
commendation on July 30, 1999.
Fitness-For-Duty Examination: In November 1999, the
District investigated Grievant for allegedly threatening Bus Operator Adelia
Clark. Purportedly, Grievant had yelled at Clark, calling her a “snitch,”
and threatened to blow up Clark’s house with her and her family in it. As a
result of the incident, the District terminated Grievant’s employment
effective November 26, 1999. However, the District later determined that it had
failed to meet the contractual time limit for processing the termination. It
therefore reinstated Grievant effective January 5, 2000. Grievant testified that
he was convicted of disturbing the peace, a misdemeanor, and placed on informal
probation as a result of this incident.
On January 10, 2000, Grievant was placed on paid administrative leave
pending a fitness-for-duty examination by a psychiatrist selected from the panel
of physicians mutually agreed on by the District and Union in accordance with
Article 38 of the Agreement. According to Transportation Manager Deidre Brown,
this action was taken because of complaints about Grievant by other employees
and because of Grievant’s threat against Clark. Brown testified that the
District was concerned that Grievant might threaten or harm Clark.
On February 3, 2000, Dr. Charles B. Schaffer, a psychiatrist, conducted a
clinical interview of Grievant. On February 7, 2000, Dr. Schaffer administered
two psychological tests (MMPI-2 and MCMI-III) to Grievant. He also reviewed the
position description for part-time bus operator in the District, Grievant’s
personnel records, and the records of Robert Bittle, M.D., who conducted a
work-fitness evaluation of Grievant in 1995. Dr. Schaffer also spoke with Sylvia
Newberry, MSW, PhD, who had provided counseling to Grievant in the past, and
with Supervisors Melvin Ross and Jim Schwandt. On February 22, 2000, Dr.
Schaffer issued the following findings:
Brown testified that she and other senior managers believed that Dr.
Schaffer’s findings were contradictory, particularly findings one and four. On
April 10, 2000, Brown and Mark Spangler, an attorney for the District, met with
Dr. Schaffer to seek clarification of his opinion. During the meeting, Dr.
Schaffer agreed to reconsider his diagnosis if the District provided him
additional information about Grievant’s problems with coworkers.
On July 14, 2000, Brown sent Dr. Schaffer a letter identifying other
purported incidents in which Grievant had confrontations with passengers,
supervisors, and coworkers. Dr. Schaffer responded by letter dated July 21,
2000, stating that after reviewing the additional information, he had revised
his opinion regarding Grievant’s ability to function as a bus operator.
Specifically, Dr. Schaffer made the following revised findings:
Dr. Schaffer testified that the additional information provided by Brown
led him to conclude that Grievant had problems dealing with people in general.
However, he conceded that he did not speak with Grievant following his receipt
of Brown’s letter. Moreover, Dr. Schaffer admitted that much of the
information in Brown’s letter concerned events of which he was aware prior to
the issuance of his initial report. He also stated that he did not consider
whether Grievant was fit to work as a light-rail operator.
After receiving Dr. Schaffer’s letter, Brown requested clarification as
to whether Grievant would be helped by treatment. Dr. Schaffer responded in a
letter dated August 4, 2000, that Grievant’s “disabling psychiatric disorder
has not sufficiently responded to treatment and will probably not respond to
treatment in the foreseeable future.” He concluded that Grievant’s
“vocational disability as a bus operator from his psychiatric disorder is
Based upon the information provided in Dr. Schaffer’s letters of July
21, 2000, and August 4, 2000, the District determined that Grievant could no
longer be a bus operator. On August 23, 2000, District representatives Don
Jeffries and Steve Peppers-Johnson met with Grievant and Union President Don
Delis. At that meeting, Grievant was informed that Dr. Schaffer had concluded
that he was permanently unfit to work as a bus operator. The District’s
representatives also told Grievant that he did not have the minimum
qualifications for openings in the classifications of light-rail mechanic A,
contract administrator, financial administrator, or administrative supervisor.
Grievant was informed that the District intended to terminate his employment at
the end of August 2000.
In a letter to Grievant dated August 30, 2000, Brown confirmed that she
intended to medically separate him from employment with the District effective
August 31, 2000. She also informed Grievant in the letter that for six months he
would remain eligible for consideration for any vacancy for which he qualified.
Brown advised Grievant that he was entitled to apply for disability retirement
benefits in accordance with Section 8 of the District’s Retirement Plan.
On August 24, 2000, Grievant filed the instant grievance, which the
District denied at each step of the grievance procedure. On October 10, 2000,
the Union notified the District by letter of its intent to submit the grievance
to final and binding arbitration.
Dr. Rosenthal’s Evaluation
of Grievant: In November
2000, the Union asked Psychiatrist Fred Rosenthal
to evaluate Grievant’s
fitness for duty as a bus operator or as a light-rail operator. In early
December 2000, Dr. Rosenthal conducted a clinical interview of Grievant and
administered a psychological test (MMPI-2) to him. Dr. Rosenthal testified that
he also reviewed the following documents: the reports from Dr. Schaffer dated
February 22, July 21, and August 4, 2000; the job descriptions for bus operator
and light-rail operator; various letters from the District to Grievant; and
Brown’s letter to Dr. Schaffer.
Dr. Rosenthal testified that he found that Grievant did not appear to
have any significant emotional disorder and that the results of the MMPI-2 did
not reveal any serious psychopathology. Dr. Rosenthal further stated that there
did not appear to be any serious problem with Grievant’s mental state that
would justify considering him to be disabled. He added that if Grievant tends to
be easily irritated by job stresses, it might be possible to place him in a
position where he would not experience such pressures. Dr. Rosenthal also
concluded that Grievant was psychiatrically able to perform the duties of a
Dr. Rosenthal testified that he disagreed with Dr. Schaffer’s opinion
that Grievant had a disabling psychiatric disorder that would permanently
preclude Grievant from employment with the District. According to Dr. Rosenthal,
Dr. Schaffer apparently based his opinion on vague and undetailed information
contained in Brown’s letter. Moreover, Dr. Rosenthal opined that it would be
hazardous to use this information to establish a diagnosis of a serious mental
illness without any further psychiatric examination of the patient. He also
stated that in his opinion Dr. Schaffer’s finding that Grievant’s
unspecified psychiatric disorder would not respond to treatment was
“surprising” from a clinical perspective since Grievant appeared to have no
psychiatric illness only five months earlier. Dr. Rosenthal further opined that
Dr. Schaffer’s conclusions about Grievant’s mental condition were difficult
to understand since psychological testing as well as Grievant’s ability to
work successfully at another job weigh against the
existence of a severe and untreatable mental illness.
CONTENTIONS OF THE DISTRICT
contends that it acted within its contractual rights in terminating Grievant’s
employment. It points out that under Article 38 of the Agreement, it can refer
an employee for a fitness-for-duty examination at any time or for any reason.
Moreover, the District argues that it fully complied with the Agreement by
referring Grievant to a physician who is on the parties’ mutually agreed panel
The District also contends that Grievant’s evaluation was open for
further consideration after Dr. Schaffer rendered his initial opinion because
there was a discrepancy between the conclusion that Grievant did not suffer from
a psychiatric disorder and the conclusion that he posed a risk of violence and
would be better suited for a different job. Moreover, the District maintains
that regardless of the psychiatric diagnosis, it was clear from Dr. Schaffer’s
initial report that Grievant was not fit to work as a bus driver.
The District asserts that Brown’s submission of additional information
to Dr. Schaffer was not prohibited by the Agreement. It contends that the
additional information reinforced Dr. Schaffer’s concerns that Grievant was a
potential risk to others and enabled him to determine that Grievant had a
The District disputes the relevance of Dr. Rosenthal’s testimony
challenging the conclusions reached by Dr. Schaffer. It argues that although the
Agreement does not directly provide that the panel physician’s determination
is final, the parties mutually intended that such findings would be conclusive.
Further, it asserts that under the terms of the Agreement, it may refer
employees only to physicians who are on the panel agreed to by the parties. The
District argues that the Union should not be permitted to circumvent that
requirement merely because it dislikes the results in a particular case.
Although it concedes that both psychiatrists testified honestly as to their
professional opinions, it maintains that the Agreement requires that deference
be given to the testimony of Dr. Schaffer.
The District points out that even though he disagreed with Dr.
Schaffer’s conclusions, Dr. Rosenthal agreed that Grievant has anger-control
problems, that he could benefit from therapy, and that Grievant needs
adjustments to his job. It contends that Dr. Rosenthal’s testimony thus
supports Dr. Schaffer’s opinion that Grievant is not fit to perform the job of
a bus driver as it is presently structured.
Finally, the District rejects the Union’s suggestion that Grievant be
assigned as a light-rail operator, pointing out that transfers are governed by
the Agreement. It maintains that the Board’s sole authority in this matter is
to decide whether Grievant was improperly discharged.
For the foregoing reasons, the District asks that the grievance be denied
in its entirety. In the alternative, assuming that the Board finds that Grievant
was improperly discharged, the District requests that the issue of the
appropriate remedy be revisited by the Board in executive session since
questions of back pay, reinstatement to an alternative position, and referral to
a third physician were not adequately explored in this proceeding.
CONTENTIONS OF THE UNION
The Union argues that the
District did not have just cause to discharge Grievant. It contends that even
though the Agreement clearly prohibits consideration of events that are more
than a year old, the District improperly gave Dr. Schaffer information about
incidents in which Grievant was allegedly involved more than a year earlier. It
points out that Dr. Schaffer admitted that he considered those stale allegations
in reaching his ultimate findings.
The Union also contends that the Retirement Plan applies in circumstances
where an employee is unable to continue working for reasons that do not
constitute grounds for discharge. The Union argues that the decision regarding
disability is therefore properly made by the Retirement Board rather than by a
physician under the provision of Article 38 of the Agreement. The Union reasons
that since Grievant had more than 10 years of seniority, the District should
have requested the Retirement Board to determine if Grievant was permanently
disabled and eligible for disability retirement rather than simply terminating
his employment. Moreover, it contends that the District failed to establish a prima
facie case of disability
since Dr. Schaffer was not asked to consider placing Grievant in a light-rail
operator position. The Union points out that light-rail positions involve
significantly reduced public contact because the operator works in a booth and
is thus separated from passengers.
The Union further contends that Dr. Schaffer’s psychiatric testimony
was not convincing. It argues that Dr. Schaffer’s conclusions should be
questioned because he initially found that Grievant was not disabled but later
changed his opinion based solely on hearsay accounts of alleged incidents. The
Union maintains that Dr. Rosenthal correctly criticized that conclusion from a
psychiatric perspective in that the change in Dr. Schaffer’s opinion was based
solely on the letter from Brown and the vague and undetailed allegations
contained therein. Moreover, it contends that Dr. Schaffer failed to adequately
consider treatment for Grievant, pointing out that Grievant’s therapist, Dr.
Newberry, believed that Grievant would benefit from treatment.
For the foregoing reasons, the Union asks that the instant grievance be
sustained. To remedy the asserted violation of the Agreement, it asks that the
District be ordered to reinstate Grievant with full back pay and benefits,
including interest on the back pay. As an alternative remedy, the Union contends
that it is within the Board’s authority to order Grievant reinstated with
conditions. In the Union’s view, the Board could properly order that Grievant
be transferred to a light-rail position to lessen his contact with passengers.
Having carefully reviewed and
weighed all the testimony and evidence presented at the hearing, and after
considering each of the parties’ arguments, it is my conclusion that the
District did not have just cause to discharge Grievant. While Dr. Schaffer’s
initial opinion was reasonably based on appropriate psychiatric criteria, his
subsequent opinion rested largely on vague and unsupported hearsay. Moreover,
his revised conclusions were inconsistent with both his initial findings and
with the persuasive testimony of Dr. Rosenthal. Dr. Schaffer’s revised opinion
is thus questionable. It is therefore insufficient to justify the termination of
The District’s contention that the opinion rendered by a physician on
the parties’ panel of physicians should be considered conclusive is not
persuasive. As I noted at the hearing, nothing in the Agreement specifically
states that such medical opinions are final or otherwise beyond review.
Moreover, as also noted on the record, the District has conceded that the
termination of an employee resulting from such a medical opinion remains subject
to the tests of just cause. While the opinion of a panel physician is generally
entitled to great weight, where, as here, the opinion is base on demonstrated
irregularities that raise reasonable questions as to the validity of the
findings, just cause mandates that a dismissal based on such findings be set
Dr. Schaffer’s initial opinion was appropriately based on sound medical
evidence obtained through his personal interview and psychiatric testing of
Grievant. He reasonably concluded that Grievant does not suffer from a major
psychiatric disorder and does not present an imminent threat of harm to himself
or others. However, Dr. Schaffer also concluded that Grievant has significant
difficulty with interpersonal relations, including problems interacting with
passengers and coworkers, and is at risk of losing control. He reasoned that
Grievant’s problems stem from his “personality style” in the setting of
his job as a bus driver. Because of this, Dr. Schaffer concluded that Grievant
is more suited for a position that does not involve much direct interaction with
passengers. In simpler terms, Dr. Schaffer initially found that while there was
nothing wrong with Grievant, his personality makes him better suited for another
job. That conclusion is neither inconsistent nor illogical. Moreover, it is
essentially consistent with Dr. Rosenthal’s findings, which lends weight to
Dr. Schaffer’s initial conclusion.
Nothing in Dr. Schaffer’s initial report justified the termination of
Grievant’s employment. Dr. Schaffer did not find that Grievant was
psychologically or medically unfit to continue working as a bus operator.
Moreover, Grievant’s difficulty in dealing with others could have been
addressed in a number of ways, including counseling, anger-management therapy,
reassignment, and progressive discipline.
However, District management was apparently confused if not dissatisfied
with Dr. Schaffer’s initial report and sought clarification. Even though
nothing in the Agreement permits such reconsideration of a medical opinion, Dr.
Schaffer met unilaterally with management representatives to listen to their
concerns. Neither Grievant nor any representative of the Union was present to
dispute whatever assertions may have been made, and Dr. Schaffer agreed to
consider any additional information that management might provide without giving
the same opportunity to Grievant or to the Union. Brown testified that
management then began asking other employees if they had any problems with
Grievant. Accusations thus gathered were then summarized in a letter from Brown
to Dr. Schaffer.
Brown’s letter consists entirely of vague, unsupported second- and
third-level hearsay. The alleged incidents described therein were not witnessed
by Brown or by any other person identified in her letter. Those alleged
incidents purportedly occurred as much as seven years earlier even though
Article 5 of the Agreement prohibits the District from considering incidents
that are more than a year old when imposing discipline.
Moreover, Dr. Schaffer conceded on cross-examination that he was previously
aware of and considered some of the incidents cited in Brown’s letter in
reaching his initial conclusions. Remarkably, he also conceded that he did not
discuss either the letter or any of the new allegations with Grievant to get his
side of the story. Such unquestioning reliance on vague hearsay as a basis for
revising a medically sound opinion cannot reasonably be justified. Any removal
that flows entirely from such an obviously flawed analysis is thus arbitrary and
capricious and without just cause. I therefore find that the District did not
have just cause to discharge Grievant.
The Union’s suggestion that Grievant be reinstated as a light-rail
operator is reasonable in that Grievant has both the seniority and experience to
fill such a position. Moreover, such an assignment would be consistent with both
Dr. Schaffer’s initial recommendation and with Dr. Rosenthal’s conclusions.
However, as such reassignments and transfers are properly governed by the
Agreement, it would be inappropriate to require such a remedy here. Rather, the
question of the reassignment of Grievant is best left to the parties.
The District did not have just
cause to discharge Grievant. To remedy that violation of the Agreement, the
District shall reinstate Grievant to his former position or to any other
position for which Grievant is qualified, subject to the concurrence of the
District and the Union. As a condition of returning to work, the District may
require Grievant to submit to a fitness-for-duty examination by a physician
mutually agreeable to the parties. In addition, the District may require
Grievant to comply with any requirements established by said physician,
including but not limited to therapy and anger-management counseling. Finally,
the District shall make Grievant whole for all lost wages, benefits, and
seniority, less his actual interim earnings, including interest at the legally
mandated rate on all monies thus owed to him. In the event that Grievant fails
or refuses to comply with any of the conditions herein, the District’s
back-pay liability will be deemed to have terminated on the date of this award.
Finally, the Arbitration Board shall retain jurisdiction over this matter for
the sole and limited purpose of resolving any disputes that may arise between
the parties concerning the interpretation, application, or implementation of
It is so ordered.
The record does not reference disciplinary actions that occurred before
Dr. Rosenthal was not then on the panel of physicians mutually agreed on by
the District and Union.
Dr. Rosenthal testified that Grievant worked as truck driver for Wesco
distributing company following the termination of his employment by the
While disagreement between physicians regarding a diagnosis is not
sufficient to discredit one opinion or the other, concurrence tends to lend
credence to both.
5 Article 5 permits consideration
of discipline up to three years old in cases involving preventable accidents
or drug and alcohol abuse that is clearly related to job performance. Those
exceptions are not relevant here.