28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Employer and Union
Date: November 15, 2001
Arbitrator: Philip Kienast 
Citation: 2001 NAC 134

 

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 September 19 and 20, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on November 15, 2001.  The parties stipulated the issue for decision as:

Did the Employer violate the Agreement by not discharging Thomas Journa for just cause?  If yes, what is the appropriate remedy?

If a remedy is ordered, the parties asked the Arbitrator to retain jurisdiction as to its implementation.

 

Pertinent Provisions of the Agreement

Rule 14 – Discipline

14.01  It is recognized that the Employer has the right to discharge, suspend, demote or reprimand an unsatisfactory employee for just cause; provided, however, that the Union shall have the right to appeal any such action in accordance with the provisions of Rule 23, JLRC and/or Rule 24, Grievance Procedures.

Background

            The grievant, Tom Journa, was the chief engineer on board the Employer’s tug Stalwart.  The incident leading to Mr. Journa’s discharge occurred while the vessel was being fueled on November 15, 2000 at the dock of Rainier Petroleum in Seattle.  As chief engineer, the grievant was the person in charge (PIC) of the fueling operation.  He was being assisted by an engineer trainee and an able bodied seaman.  It is undisputed that fuel tanks are to be sounded prior to fueling to determine how much fuel they contain.  It is undisputed that Mr. Journa did not sound two of the vessel’s nine tanks prior to beginning to fill these two tanks.  These two tanks were the No. 1 on the port and starboard tanks.  The grievant stated he partially opened (25-30%) the No. 1 port and starboard tanks to bleed off some of the fuel entering the vessel to lower the pressure and rate of flow to No. 2 centerline as he topped it off.  When Mr. Journa began to fill the No. 1 port and starboard tanks he believed they were empty due to a previous sounding done by the port engineer that indicated the tanks were empty. 

In fact the tanks were not empty because approximately 1,500 gallons intended for these tanks spilled out on the decks of the Stalwart and into the waters of Puget Sound.  the tanks were estimated to have been unmonitored from 6 to 10 minutes to permit that number of gallons to spill.  The spill was investigated by both the U.S. Coast Guard and the State of Washington which resulted in fines leveled of $3,500 and $11,000 from the respective jurisdictions.  In addition, the Employer paid another $31,000 to effectuate required cleanup of the spill.

After its own investigation of the incident the Employer decided to terminate Mr. Journa.  His notice of discharge stated (J4):

This is to advise that the company has concluded its investigation of the fuel spill that occurred on November 15, 2000 while you were assigned as Chief Engineer aboard the tug Stalwart.  It was determined that approximately 1,500 gallons of diesel fuel was spilled onto the deck of the tug Stalwart, most of which eventually went into the waters of Elliott Bay during the fueling process.  We have further determined in our investigation that diesel fuel was spewing out on deck for several minutes before you even realized that there was a problem.  As an experienced Chief Engineer, there is no excuse for a fueling mishap of this nature, nor your inattention to the job.

After careful consideration of all available information we have determined that you, as Person In Charge (P.I.C.) during the fuel transfer process, are guilty of gross negligence in the performance of your duties as Chief Engineer.  Therefore, we have no other recourse but to terminate your employment with Crowley Marine Services, Inc., effective December 19, 2000.  Any monies owed to you will be sent pursuant to your check route instructions.

Contentions

            The Employer contends the grievant was an experienced engineer familiar with the Stalwart and knowledgeable of the rule that all tanks are to be sounded prior to filling as well as the requirement that tanks be monitored during the fueling process.  It argues the grievant’s deliberate failure to comply with these requirements constitutes gross negligence for which summary discharge is just and appropriate.

            The Union contends the grievant erred in not sounding the No. 1 port and starboard tanks prior to diverting fuel to them.  It maintains this error does not rise to the level of gross negligence as alleged by the Employer.  It argues other chief engineers involved in spills were not discharged.

Analysis and Conclusions

            The evidence is clear and convincing that Mr. Journa failed to sound the No. 1 port and starboard tanks prior to fueling or after he began sending fuel into them toward the end of the fueling process.  the grievant testified he “should have” sounded the tanks and that he had never previously failed to sound tanks (Tr. 233, 235).  He further testified he was quite knowledgeable with the tug Stalwart having sailed aboard the vessel every two months since 1997 (Tr. 228).  Based on this evidence, the Arbitrator concludes the grievant made a deliberate choice to ignore fueling procedures he had never previously ignored in his 13 years as a chief engineer with Crowley.  Therefore, the Employer has met its burden of proving the alleged infraction.  The discussion now turns to whether the penalty of discharge was justified.  In this regard, it is well established in the common law of arbitration that the penalty imposed should be generally consistent with penalties imposed on other employees who were similarly situated to the grievant.  The record in this case discloses three prior instances in which chief engineers were disciplined for failure to follow fueling procedures.

            The most recent of these three involved Jim Haithcock, the chief engineer aboard the tug Sea Voyager.  On June 4, 1999 while he was engaged in an internal fuel transfer when his attention was diverted.  As a result fuel spilled on the decks and into Valdez Harbor.  As with the grievant in this matter, a spill occurred because Mr. Haithcock failed to follow several pertinent fuel transfer procedures well known to him.  He was suspended for a few weeks and demoted to chief engineer on a barge.  His notice of discipline concluded “should an incident of a similar nature occur, disciplinary action up to and including discharge may be issued” (J10).

            Gary Fuber, vice president of operations, testified regarding the Haithcock case (Tr. 64-5):

After going through the review and that and the circumstances it was – came to the conclusion that again, as far as a chief engineer, that the actions here – we didn’t have any confidence that this wouldn’t be repeated or this type of activity would be, you know, corrected or would just occur at some other system.  So we demoted him and he transferred over to one of the response barges, 500-2, and then got a written warning and he had to get some training.

            The next most comparable incident occurred in March of 1998 when chief engineer Norman Decremer was found to have been “negligent in preparing the tug Sea Valiant for fueling” which resulted in a fuel spill on January 18, 1998.  Mr. Decremer received only a written warning for his failure to follow proper fueling procedures.  His warning letter concluded that any further spill “will result in further disciplinary action, up to and including termination” (J11).

            Mr. Fuber testified that Mr. Decremer failed to insure that valves were closed and seated and was suspended “for not following procedures” (Tr. 67).  When asked on direct how he distinguished Mr. Decremer’s and Mr. Haithcock’s case from Mr. Journa’s case, Fuber answered (Tr. 68):

Yeah.  Again, back to the – Stuart said it earlier, the singular mistake – of course Mr. Haithcock, you know, we took off the boat and out of the chief engineer’s job.  Mr. Decremer we gave him the suspension.  So a little bit different level of severity but again, singular mistakes, you know, in themselves don’t lead to a – lead me to a bigger noncorrected issue in this case, in the Decremer’s case.

 

            The third and final spill incident occurred in March of 1985.  Donald Finberg was the chief engineer aboard the tug Adventurer at Pier 17 in Seattle on March 6 when a fuel spill occurred.  Investigation of the incident disclosed it was Mr. Finberg’s failure to follow proper fueling procedures that caused the spill.  His disciplinary notice states that as a result of this failure “and the previous warning issued to Mr. Finberg, notice of termination is hereby given effective immediately” (J12).

            Commenting on the Finberg case, Mr. Fuber testified he was discharged for two major performance failures in a short period.  In the first failure his inattention to operating procedures let water into an engine which blew the engine.  The second failure was a fuel spill.  He was given a written warning for his first failure and fired for his second failure (Tr. 62).

            The foregoing evidence supports the conclusion that in the past the Employer has used disciplinary measures short of discharge as punishment for performance failures by chief engineers.  It discharged a chief engineer only after a second performance failure.

            The Employer has also failed to establish that Mr. Journa’s behavior was more egregious than the other three engineers to warrant his summary discharge.  It attempted to argue that Mr. Journa’s failure to sound all tanks before fueling was followed by and made more egregious by a second failure to monitor and sound tanks as they were being filled.  But the same logic could be applied to the Decremer case.  Decremer failed to check all the manifold to insure they were closed.  If he had been monitoring and sounding the tanks he was filling he would have noticed the tanks were not filling as fast given the rate of fuel transfer and thereby checked to make sure fuel was not going into unintended tanks.  Likewise, in the case of Mr. Haithcock, once he turned off the alarm system it appears that had he closely monitored the fuel transfer he could have avoided the fuel spill that occurred.

            In the final analysis, Mr. Journa’s offense was no more egregious than that of chief engineers Decremer and Haithcock.  Therefore, the Employer had no basis for altering its practice of using progressive discipline and summarily discharging Mr. Journa absent a clear notice to all chief engineers following the Haithcock incident in 1999 that in the future fuel spills caused by a chief engineer’s failure to follow fueling procedures will result in their immediate termination.  The Employer has the discretion to set a zero tolerance policy as to spills and to enforce this policy by terminating a chief engineer who is negligent and causes a spill.  In its 1991 revision of its spill prevention policy (J5), the Employer states only that an employee “found to be negligent . . . will be subject to disciplinary action by the company.”

            Absent clear warning that spills caused by a chief engineer would result in discharge and given the past practice of the Employer of using discipline short of discharge to punish similarly situated engineers responsible for fuel spills, the Arbitrator must conclude the Employer did not have just cause to discharge Mr. Journa.

AWARD

1.       The Employer did violate the Agreement by not discharging Thomas Journa for just cause.

2.       The discharge shall be reduced to a suspension of thirty (30) calendar days following which the grievant is to be reinstated as a chief engineer aboard either a tug or a barge at the discretion of the Employer.

3.       The Employer shall reimburse the grievant for lost wages from the end of his suspension until his reinstatement.  Calculation shall be made based on the wage rate of the position to which he is reinstated.

4.       The Arbitrator retains jurisdiction for the sole purpose of adjudicating any disputes over the implementation of the above ordered remedy.

 

 

____________________________________

Philip Kienast

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028