Title: Regional Transportation District and
Amalgamated Transit Union, Local 1001
FOR THE COMPANY:
HEARING HELD: July 10, 2001 at the offices of the Company, 1600 Blake Street, Denver, Colorado. All testimony was taken under oath or affirmation.
THIS PROCEEDING in arbitration was authorized under Article I, Section 10 of the Agreement between the parties dated March 1, 2000. The Arbitrator was selected by the parties.
POST-HEARING letter briefs were timely filed by both parties on July 18, 2001.
BACKGROUND AND ISSUE
The case presented herein for decision involves the termination on February 27, 2001 of the Grievant, Matthew McNew, for “misappropriation and/or theft of RTD property”. [Jt. Ex. 2] McNew was at the time working as a body mechanic at the Employer’s (or RTD) East Metro facility. He reported directly to Danny Walker, the Maintenance Supervisor.
The East Metro facility exists for the purpose of housing and repairing buses. However, several other vehicles, referred to collectively as “support vehicles,” are assigned to the facility: one car, two wreckers, and three pickup trucks (known as T-trucks). These support vehicles are used in various service capacities such as the movement of personnel, parts, damaged buses, etc. Should the support vehicles themselves require some repair, the work would normally be done at the central or “district” shop; i.e., repairs on support vehicles would be done at East Metro only in an emergency situation.
On Monday, February 19, 2001 the Grievant approached Walker’s boss, Doug Stanton, Maintenance Manager, to complain about Walker’s treatment of him, and to request removal of a counseling memo which had been placed in his file by Walker a month earlier. [Un. Ex. 5] Stanton asked for “24 hours to look into it.” The following day, February 20th, Stanton sent a memo [Er. Ex. D; Un. Ex. 6] to Walker and another supervisor, Jose Duran, identifying McNew’s complaints and asking that the two of them review McNew’ work performance and record as it related to the counseling memo.
Walker and Duran conducted an investigation the same day. As part of that process Walker pulled both the parts sheets [Er. Ex. C] and McNew’s work record [Er. Ex. G] for the prior two months. Together they showed that the Grievant had signed out two identical T-truck windshields, one on January 25th and one on February 12th, but that the Grievant had never worked on either vehicle for which the windshields had been obtained (T-1 and T-53). They submitted their report to Stanton.
When Stanton had not responded within the 24-hour period, the Grievant that evening (February 20th) went to the RTD Board meeting to complain about his treatment at East Metro, specifically “harassment on the job because of this [sic] various job hours.” [Un. Ex. 7] The belief in harassment also stemmed from the existence of the counseling memo, and by being asked to complete a survey immediately after having done one. In addition, he complained that Walker was not properly performing his job because he (Walker) was spending too much time on the computer.
Walker continued his investigation and established that the windshields had not been replaced on either T-1 or T-53, and indeed had not been replaced on any East Metro support vehicle, nor were any needed. He and Duran conducted a search for them on February 21st, but none could be found. The following day, February 22nd, Walker had a meeting with McNew, who, when asked about what happened to the windshields, responded, “If they [the trucks] needed them [windshields], I installed them.”
McNew’s recollection of that meeting differs significantly in that he recalls no direct question about the location of windshields. In any event, Walker then gave McNew a “Form 5.” [Jt. Ex. 2] It charges him with a violation of Article 203, “misappropriation and/or theft of RTD property,” and requests a response. The Grievant made no response that day, but on Friday, February 23rd, in a meeting involving Stanton, Walker, the Grievant and a Union representative, McNew wrote,
Due to the stress of yesterday[‘s] meeting I mistakenly said I had installed the windshields. However given the time to think about it I remember getting the windshields for future use but replacement was not necessary at this time.
Immediately after the meeting McNew took the group to a location within the facility were the windshields were located. The area in which they were found is referred to as a “solar area” in that it is designed to assist in heating the building. It has no roof and a gravel floor, is beyond two doors from the work area, inside a door that leads to the back property of the building (where no vehicles of any sort would normally pass), and it is some 400’ from the Grievant’s normal work area, in a different direction and 600’ from the parts storeroom. [Er. Exs. A, B] It is not a normal storage area, not only because it is exposed to the elements, but it is also unsecured.
On February 27th, the Form 5 was “disposed” by Walker stating that McNew’s responses were unsatisfactory and that he was being terminated. A grievance was filed on March 1, 2001, processed normally through the grievance procedure, denied by the Employer throughout, and is now stipulated to be properly before this Arbitrator for a decision on its merits.  The issues to be decided are stipulated to be:
Was the Grievant terminated for proper cause? If not, what is the appropriate remedy?
SECTION OF THE LABOR AGREEMENT
The management of the system and the direction of the working forces is vested exclusively in the Employer and the Employer shall continue to have all rights customarily reserved to management, including but not limited to, the right to hire, promote, suspend, discipline, or discharge for proper cause; . . .
RELEVANT SECTION OF THE RULES AND REGULATIONS
203: Theft, Misappropriation, Loss Destruction, or Damage of Property
POSITION OF THE EMPLOYER
The Employer contends that the Grievant checked out two windshields which he either took for his own use, or intended to do so. In support of this position, the Employer points to the following facts:
1. Work on support vehicles is not normally done at East Metro, none of them needed windshields, and McNew was never asked to work on any of them.
2. The windshields were procured without supervisor’s knowledge and transported improperly, they were identical in that they both had internal antennas (although T-53 had an external antenna thus using a different windshield), and they were checked out several weeks apart.
3. There was no need to stockpile windshields in any event as there are four deliveries daily from central shop to East Metro.
4. Once at East Metro, the Grievant told no other mechanics that two windshields for the pickup trucks were on the East Metro property or where they were. He did not take them to the storeroom even though there was room there (which he apparently did not check), and racks where they might be properly stored.
5. He was asked a direct question as to the whereabouts of the windshields on February 22nd, and his answer clearly implied that he had installed them on the two vehicles. Only a day later he recanted that story, citing “stress” as the reason for his confusion; but nothing would indicate any plausible reason for stress. And if during the February 22nd meeting Walker never asked directly about the windshields, as McNew contends, the Form 5 would not have been created.
Taken collectively, it is clear that the Grievant knowingly and willfully stole or misappropriated Company property. For over four years the Employer has maintained a “zero tolerance” policy with respect to such misbehavior. [Er. Ex. E] In this case the Grievant’s explanations are simply implausible, he changed story and lied, he has never admitted any guilt, and has indicated no remorse. Therefore, the termination is justified and the grievance must be denied.
POSTION OF THE UNION
The Grievant strongly believes that his supervisors were ‘”messing with him” regarding his ability to maintain his location, shift and times. He’d been assured these would not change, and he was frantic about this because it affected his ability to retrieve his child from childcare. They were continually “looking over his shoulder.” When he felt Stanton was ignoring his complaint on February 19th, he took the radical step of complaining directly to the Board on 20th. It can be no coincidence that he was told of his likely termination only a day later.
Nor can it be true that management was unaware of the Grievant’s Board appearance: stories are circulated rapidly within RTD. The Grievant’s appearance would have been very unusual, and persons at East Metro would have known about it immediately. In addition, McNew had earlier reported to the RTD central administration that in his opinion a bus in unsafe condition had been returned to service. One must conclude that the termination was retaliatory; the windshields simply provided a pretext for the Employer’s action.
However, even if the action of the Employer was not retaliatory, its action was unjustified:
1. Replacement of any curved glass is within the Grievant’s job description. It was winter, and McNew had simply taken it upon himself to prepare for windshield repair. It is quite common for mechanics to get parts before needed, and to even “hoard” parts so they do not run out during critical periods.
2. While McNew did not normally work on support vehicles, Stanton had earlier indicated that East Metro was to do as much as possible “in-house” rather than sending repairs to the central facility. Having windshields available at East Metro for the T-trucks was consistent with that philosophy.
3. McNew picked up the windshields while he was at the central storeroom as a matter of convenience. He knew he was on video: there was no secret here. And they were transported safely back to his shop. When located, the RTD bar code tags were still on them –not a likely circumstance if they were to be stolen.
4. The Grievant understood that management wanted only bus parts in the East Metro storeroom, so he looked for the closest available spot for storage of the windshields. The solar room is closer to his workplace than the storeroom. The fact that it is unsecured is not unusual as there are many such areas on the property. In any event, it is unlikely this spot would be used as a drop location for possible theft: the outside door opens to a weed field with very limited vehicular access.
5. During his first meeting with Walker on February 22nd the Grievant was never asked directly if he knew where windshields were. Rather, Walker had said, “These were issued to you. What do you know about them?” He responded truthfully that if the trucks had needed new windshields he would have installed them.
In sum, the Union believes that McNew was “set up” on February 21st and 22nd after complaining to the Board about harassment by his supervisor. He was viewed as a “whistle blower” by his immediate managers, who did not get along well with him. There is no proof, much less proof beyond a reasonable doubt, that McNew ever intended to deprive RTD of its property, nor that the windshields were ever taken or stored away from RTD premises. He is simply not guilty of either theft or misappropriation.
However, even if McNew engaged in some misbehavior in not obtaining supervisory permission to obtain the windshields, or improperly transporting them, or inappropriately storing them, termination cannot be the proper penalty. It is too severe for the possible offenses and it is inconsistent with prior awards.
In sum, the Employer failed to meet its burden of proof. The grievance should be upheld, and McNew should be returned to his former position with full back pay, benefits and a cleansed record.
A few elements of this case are reasonably clear. First, whether theft or misappropriation, a willful action of this type subjects the employee to termination. An employer has a clear right to protect its assets. Second, the value of the property is generally irrelevant; it is certainly so here where the value is likely several hundred dollars. Third, in such matters the Employer shoulders the burden of proof to establish with clear and convincing evidence that the grievant is guilty of the charge. And fourth, if guilty, the Employer in determining the appropriate penalty must show that its decision is free of any arbitrary, capricious or discriminatory elements.
Let us look first at the matter of theft or misappropriation. Both are forms of dishonesty, along with lying and cheating, and such behaviors are in sharp contrast to other misbehaviors (carelessness, insolence, tardiness, etc.) that normally call for some form of progressive discipline. Whether labeled theft or misappropriation, the circumstance requires that the property belonged to another, was taken without the other’s consent, with the intention to convert to ones own use, and permanently deprive the other of the property. If the Employer’s version of the facts is accepted, that is exactly what happened in the case before us.
But of course whether it happened is a function of the credibility of the Grievant’s testimony since the evidence is almost entirely circumstantial. Are McNew’s explanations plausible? Do they “wash?” These matters of credibility are crucial not because he shoulders any burden here, but because the evidence against him is piled rather high. Among the facts and findings are these:
1. Support vehicle repair has never been done at East Metro.
2. If it were to be, it would require an emergency and the consent of the supervisor.
3. Stanton’s comments about “doing all work in-house” referred to buses, their normal work assignments, not to support vehicles.
4. McNew obtained the windshields without any supervisory authorization or knowledge.
5. The windshields were checked out more than two weeks apart.
6. No support vehicle needed a windshield.
7. One of the vehicles did not even require a windshield of this type.
8. Parts of this size are never “hoarded” by mechanics for any vehicle.
9. Parts are never stockpiled for support vehicles.
10. Needed parts are delivered to East Metro 2-4 times every day.
11. The windshields were improperly transported to East Metro.
12. Once there, McNew never checked to see if there was room for them in the storeroom.
13. No one at East Metro, with the possible exception of one other mechanic, ever knew the windshields were on the property.
14. They were stored in an unsecured area in violation of the Employer’s policy regarding parts storage.
15. The area also was inappropriate because it is exposed to the elements and has a gravel floor, risking damage to the windshields.
16. The area has relatively easy outside access to a weedy area rarely traveled by persons or vehicles.
There is no question that where necessary the arbitrator is charged with determining credibility, and arbitrators regularly base their decisions on such evidence if it reaches the appropriate standard of proof. The tests for credibility include the witness’s means of knowledge, strength of memory, consistency of statements, the motives which actuated his statements, the fact –if it is a fact –that the testimony has been contradicted, the witness’s bias or interest if any, and his demeanor upon the witness stand including his attitude toward the giving of testimony. In the instant case we have a Grievant that fares poorly against all of these tests, with the exception of the first two; and he is unable to satisfactorily respond to any of the sixteen points noted above. This prima facie case creates an adverse inference concerning the Grievant’s guilt on the matter of misappropriation. Indeed, there is nothing in the record to establish that the Grievant ever intended to install the windshields into the trucks, or to even inform the management of their whereabouts.
There are other reasons to accept the Employer’s version of the case. There is no reasonable explanation (other than the retaliation contention, discussed below) why Walker would have written the Form 5 the way he did had not McNew indicated on February 22nd that he had installed the windshields, something both men knew McNew had not done. Walker almost certainly asked about the windshields in a manner indicating he was looking for them: they were not installed on the trucks, and the unsuccessful search had occurred only the day before. The Grievant admits saying he had installed them. [Jt. Ex. 2, p. 1] His statement and his testimony that he created this fabrication under “stress” is simply not credible.
True, he firmly believed he was under scrutiny by his supervisors; and only a day and a night earlier he had testified against them before the Board. But he offers no reasonable explanation as to how and why these circumstances would have precipitated his false and misleading response on February 22nd; i.e., if he was under some sort of special scrutiny as he claims, one would expect him to be more forthcoming about suspicious behavior, not less.
He claimed in February and again during the hearing that he was being harassed by his supervisors. “Harassment” is a conclusion drawn from facts. Yet there are virtually no facts upon which to base such a conclusion. The Employer had gone out of its way to accommodate McNew’s special needs with respect to hours, no changes were made that might adversely affect his shift or his work location, and no one testified why the filling out of a second survey might be unusual or unreasonable. Neither the “stress” nor “harassment” claims can be substantiated.
However, the Union would contend that the Employer’s case is also not credible since Walker has a strong motive to take adverse action against the Grievant: after all, McNew testified against him in public and in front of the Board. This, coupled with the reporting of the potentially unsafe bus which had been returned to service, would certainly provide clear motivation for Walker to harass the Grievant, even to the point of seeking to get rid of him. What undermines this contention is the fact that Walker’s report about McNew’s activities regarding the support vehicles’ windshields, and his work record, had already been submitted to Stanton prior to the Board meeting on February 20th. Therefore, even if Walker knew of McNew’s Board appearance before he wrote up the Form 5 on the 21st, there is no evidence that Walker changed his positions or strengthened his resolve after his investigation of February 20th.
In brief, it is far more plausible that the timing of the Employer’s action to terminate is an unfortunate coincidence rather than a result of retaliation. The Company did not fabricate a story against him. Rather, the evidence shows that the situation is of his own making. One cannot help but conclude from all of this evidence and testimony that the Grievant did indeed misappropriate Employer property of significant value.
Does it reach the level of proof required? Yes. There are four such standards commonly used in arbitration: preponderance of evidence (normally acceptable in all but discharge cases), evidence sufficient to convince a reasonable mind of guilt, clear and convincing evidence, and proof beyond a reasonable doubt. It is the third of these, clear and convincing evidence, that is almost universally accepted as appropriate in discharge cases, and, as noted, it has been achieved here.
This brings us to the final issue: whether the Employer’s decision to terminate was proper. Weight must be given to the seriousness of the offense, knowledge of the rules and the issuance of warnings if appropriate, willfulness of action, the employee’s whole record, the employer’s consistency of enforcement, and the equality of treatment relative to others. As Arbitrator Whitley McCoy stated more than 50 years ago,
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. . . 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.
Noteworthy in the instant case are two documents: the Maintenance Rules and Regulations [Er. Ex. F], which defines and prohibits “theft, misappropriation, loss, destruction, or damage” of Company property; and the memo to all employees from the RTD general manager [Er. Ex. E] adopting “Zero Tolerance” with respect to such matters. The Grievant does not deny being fully aware of these rules and policies. Such a finding clearly distinguishes this case from that of Arbitrator Lazar cited earlier [Yazzio grievance, supra] wherein he set aside the termination entirely because of the absence of “a clear and communicated policy on lost and found bicycles . . .”
The policy is clear: theft or misappropriation is prohibited and will result in discharge; the Grievant was fully aware of this; and his testimony cannot reasonably explain any of his behaviors with respect to the two windshields. Nor does the record show that any other person has been or would have been treated any differently under the circumstances. One simply cannot find in the record of this case any credible evidence of arbitrary, capricious or discriminatory elements with respect to the Employer’s action. Therefore the decision to terminate cannot be modified.
The grievance of Matthew McNew is denied. _______________________________
THOMAS L. WATKINS, Arbitrator
 The latter matter was subsequently investigated and Walker was exonerated.
 The Union raised a due process violation at the arbitration hearing for the first time, contending that the discipline must be voided because the charge had changed from “theft” (when the windshields could not be located) to “misappropriation of property” (when they were later found). This contention is dismissed because (1) the Grievant could have resolved this dilemma on February 20th when he was asked about the windshields but chose not to, (2) both charges appear on the original Form 5 dated February 22nd, (3) they are treated identically and inseparably under the Company’s Rules and Regulations [Er. Ex. F], (4) there is no substantive effect on this case between the two charges [see “Analysis” below], and (5) the Union failed to raise this objection in any prior step of the grievance procedure.
 The post-hearing brief of the Employer [FN, p.2] indicates that some revision of this wording may subsequently have been made, along with a “penalties” section [new Ex. F]. However, the wording above was accepted as part of the record during the hearing and cannot now be amended.
 RTD v. ATU Local 1001 (Broderick Yazzio, Grievant), by Arbitrator Joseph Lazar, June 25, 2001. [Un. Brief Ex. B] (Union Brief Exhibit A is held to be irrelevant because it concerns absenteeism.)
 See for example 115 LA 449; 113 LA 1084; 112 LA 365.
 See for example 114 LA 1192; 113 LA 1084.
 See Elkouri and Elkouri, How Arbitration Works, 5th ed. (BNA 1997) at 442-6.
 Elkouri and Elkouri, supra, at 452-3.
 For examples of cases decided principally upon the credibility of witnesses see 115 LA 1087, 115 LA 1113, 114 LA 1588, 113 LA 755, 112 LA 955, 111 LA 433. In all of these cases the decision to terminate was upheld, but it was reversed in 111 LA 545 because the employer’s witnesses were not credible.
 Elkouri, supra, at 905-8, and 115 LA 461, 115 LA 1084, 111 LA 433, 111 LA 545.
 Stockham Pipe Fittings Co., 1 LA 160, 162 (1945).