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Title: Fluor Hanford and Hanford Guards Union, Local 21
Date: December 9, 2003
Arbitrator: Sandra Smith Gangle
Citation: 2003 NAC 116

FEDERAL MEDIATION AND CONCILIATION SERVICE

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

In the Matter of the Arbitration
between

HANFORD GUARDS UNION,LOCAL 21,

                                   Union,

     and

FLUOR HANFORD, INC.,

                                   Employer

FMCS Case No. 030515-10508-7

DECISION AND AWARD

Devin Shelby Discipline Grievance

 

Hearings Conducted:

October 21 and 22,  2003

 

Representing the Union: Lucinda J. Luke, Attorney
Cowan Walker, P.S.
503 Knight Street, Suite A, P.O. Box 927
Richland, WA  99352

 

Representing the Employer: Charles K. MacLeod, Chief Labor Counsel
Fluor Hanford, Inc.
P.O. Box 1000, MSIN: B3-64
Richland, WA  99352-1000

 

Arbitrator: Sandra Smith Gangle, J.D.
Sandra Smith Gangle, P.C.
P.O. Box 904
Salem, OR  97308-0904

 

Date of Decision: December 9, 2003

 

  BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement,  effective between December 24, 2000 and October 29, 2005, between Fluor Hanford, Inc. (hereafter “the Company” or “the Employer”) and Hanford Guards Union, Local 21 (hereafter “HGU” or “the Union”).  Jt. Ex. No.1.

            A grievance was filed on behalf of the Grievant, following a disciplinary action that was issued by the Employer on or about November 10, 2002.  See Jt. Ex. No. 2.  The parties, having been unable to resolve the matter during the grievance procedure, mutually selected Sandra Smith Gangle, J.D., of Salem, Oregon, through selection procedures of the Federal Mediation & Conciliation Service, as the impartial labor arbitrator who would conduct a hearing and render a decision in the matter.

            A hearing was conducted on October 21 and 22, 2003 in a Company conference room at 2420 Stevens Center Building, Richland, Washington.  The parties were thoroughly and competently represented by their respective representatives throughout the hearing.  The Employer was represented by Charles K. MacLeod, Chief Labor Counsel, Fluor Hanford, Inc., Richland, Washington.  The Union was represented by Lucinda Luke, Attorney at Law, of the law firm of  Cowan Walker, P.S., Richland, Washington.

            The parties stipulated that the grievance was timely and that there were no objections to substantive or procedural arbitrability of the matter.  The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.  The arbitrator tape-recorded the hearing as an adjunct to her personal notes.  The parties agreed that the arbitrator’s tapes were not an official record of the hearing, but were her personal property and would not be available to either party.

            The following witnesses appeared and testified under oath and were subject to cross-examination:

            (a) For the Employer:  Torchey Cohu, Michael G. Dickinson, Capt. Robert Morrow and Major Monty Giulio;

            (b)  For the Union:  Lt. Abel A. Cortina, Major Monty Giulio, Cipriano Moreno, Edwin Pease, Darrel Sybouts and Devin Shelby (Grievant).

            At the close of the hearing, the parties elected to present written briefs in lieu of oral closing argument.  They agreed that Monday, November 24, 2003 would be the date for mutual exchange of the briefs.  They also agreed that the record would remain open following the hearing for the Employer to submit copies of any records that it could locate showing the certification that Officer Robert Morrow had received as a trainer of operators of the V-150 armored personnel carrier vehicle.  

            On November 10, 2003, the Company’s advocate sent certain exhibits to the arbitrator by fax transmission, showing the certification of Officer Morrow as a trainer.  See Exhibits 13 A-H. On November 26, 2003, the arbitrator received both parties’ briefs.  The Union’s brief arrived by overnight delivery to the arbitrator’s street address and the Employer’s by regular U.S. Mail to the arbitrator’s post office box.  

            In her cover letter accompanying the Union’s brief, the Union’s attorney objected to the late production of Exhibits 13 A-H, on the basis that the certification records of any trainer of V-150 operators had been requested in a discovery request letter that the Union had sent to the Employer on February 4, 2003.  Since the Employer had not produced Officer Morrow’s certification records in response to the discovery request, they should not be admitted by the arbitrator as part of the hearing record.

            On December 4, 2003, the Employer’s counsel sent a response letter to the arbitrator, explaining that the Company’s reason for not providing the certification records sooner was that Officer Morrow was not a “Patrol Training Academy (PTA) Instructor”, but rather a “shift lieutenant” who was not assigned to the Academy.  In the Union’s request for discovery, only the certification records of “PTA instructors” had been requested, however.  Had the Company known that Morrow’s certification records were being requested, those would have been provided along with the other discovery that the Union requested in its February 4, 2003 letter, stated the attorney.

            Article XIX (6) of the parties’ labor agreement requires that “all evidence . . . bearing on the case” be made available to both parties’ representatives at the Step II level of the grievance procedure.  One of the Union’s arguments in support of its grievance was that the Grievant had not been properly trained for operation of the V-150 armored personnel carrier, thereby implying that his inadequate training had been a causative factor in the incident that gave rise to his discipline.  See Jt. Exhibits 2, 4.  Since Officer Morrow was the only trainer who had dealt with the Grievant regarding operation of the V-150, the Company should have provided the Union with trainer Morrow’s certification records, in the interest of cooperative labor relations, even though Morrow may not have fit the technical definition of a “PTA instructor” in the Union’s discovery request.[1] 

            Nevertheless, the arbitrator finds that, under the circumstances, the Company has adequately explained its belated disclosure of Officer Morrow’s certification documents. The Union had requested the training certificates of “PTA instructors” in its discovery request, but Officer Morrow did not meet that description.  Therefore, the Company’s failure to provide Officer Morrow’s certificates in response to the request did not violate the parties’ labor contract. Furthermore, the parties’ stipulated statement of the issue before the arbitrator does not reference the adequacy of the Grievant’s training on the V-150, or, more specifically, the adequacy of his trainer’s certification.  Therefore, the failure to provide Morrow’s certification records prior to the hearing was not a material non-disclosure, although the evidence was certainly relevant to the issue of just cause.

            For these reasons, the arbitrator has declined to exclude Exhibits 13 A-H from evidence, as requested by the Union in its brief.  The arbitrator has considered, and given appropriate weight to, all the evidence that was offered by both parties at the hearing, including Company Exhibit 13, in deciding the stipulated issue.

STATEMENT OF THE ISSUE

            The parties stipulated that the issue before the arbitrator in this matter is as follows:

            Did the Employer violate the parties’ collective bargaining agreement by wrongly disciplining the Grievant, Devin J. Shelby, for the manner he operated a Hanford Patrol V-150 armored personnel carrier, by (1) permanently removing him from the Special Response Team (SPO III) Program to SPO II duties, and (2) imposing a 10-day suspension?

          If so, what is the appropriate remedy?

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE II—RESPONSIBILITY

1.         The PARTIES RECOGNIZE THAT UNDER THIS Agreement each of them has responsibilities for the welfare and security of the Security Police Officers (SPOs).

* * * * *

B.         Subject only to the express limitations stated in this Agreement, or in any other Agreement between the Company and the Union, the Company retains the exclusive right to manage its business and to direct the working force, including (but not limited to) the right to plan, direct and control operations; . . . to hire, lay off, transfer, promote or relieve employees from duties; to maintain order; and to suspend, demote, discipline and discharge employees for just cause.

* * * * *

ARTICLE V – JOB DEFINITION AND QUALIFICATIONS

2.         Part 1 – Classifications

            The SPOs covered by this Agreement shall be classified as follows:

            A.        Security Officer II (SPO II), and Security Officer III (SPO III)

                        1. Basic Consideration

                        * * * * *

                        A Security Police Officer III C is a Security Police Officer who meets the higher physical fitness, weapons, and training standards pursuant to 10 CFR Part 1046 and meets higher fitness, weapons and training requirements as established by the Company and may be assigned to a tactical assignment.

                        * * * * *

                        8.  Responsibility for Assignments

                        Tactical assignments will be made as deemed necessary by the Company in fulfillment of the security and protective mission at Hanford.

                        * * * * *

            B.         Tactical Response Resources

                        The Company will establish plans for the development of, and deployment of SPO III resources.  SPO III resources shall assure adequate emergency response to events associated with the attempted or actual sabotage of nuclear weapons, theft of nuclear weapons or test devices, Category I quantities of Special Nuclear Materials (SNM), other selected strategic materials and associated facilities, labor disturbances, and other situations threatening the security of the facility.

            Part III – Qualification Problem Resolution

                        * * * * *

            C.  Removal from Tactical Assignments – Other

            A SPO who is removed from a tactical assignment by virtue of not meeting the standard outlined in Part I Section B, shall be, if medically and mentally qualified, returned to a regular SPO II assignment at the appropriate SPO II rate of pay.

 

ARTICLE VI – WAGE RATES, QUALIFICATIONS AND JOB DEFINITIONS
* * * * *

3.         Job Classification Differential Pay

            * * * * *

            A.        Security Police Officer IIIs (SPO III Cs) will receive a premium of sixty ($60.00) dollars per week. 

            * * * * *

ARTICLE XVI –INFORMATION TO UNION AND SPO
* * * * *

6.         * * * * * Records of disciplinary action will remain in the employee’s personnel file maintained by Human Resources for a reasonable period, normally not less than twelve (12) months from the date of discipline.  At the end of this period, the employee may request removal of the record of disciplinary action.

* * * * *

ARTICLE XIX – GRIEVANCE PROCEDURE

* * * * *
6.        
The grievance procedure established by this Article XIX shall be used by the parties for
the purpose of expeditious, peaceful and equitable settlement of grievances. * * * * *

STEP II
* * * * *  All evidence or testimony bearing on the case shall be available to both the Company and the Union Step II representatives for their collective or individual consideration. * * * * *

ARTICLE XX – ARBITRATION

1.         Any grievance which remains unsettled after having been fully processed pursuant to the provisions of Article XIX – Grievance Procedure – and which involves either

            A.        The interpretation or application of a provision of this Agreement or

            B.         A disciplinary penalty * * * * * which is alleged to have been imposed without just cause, may be submitted to arbitration * * * * *

2.         * * * * * the standard to be applied by an arbitrator to cases involving disciplinary penalty (including discharge) is that such penalties shall be imposed only for just cause.  * * * * * 

6.         Within five (5)  business days after the arbitrator has been selected, the parties will meet to determine the issue or issues to be decided by the arbitrator and shall enter into a submission agreement which shall distinctly state the issue or issues to be decided.

7.         Each party shall bear its respective expenses, and the expenses and fee of the arbitrator shall be shared equally by the Union and the Company.

8.         The arbitrator shall not have the power to add to, disregard or modify any of the terms of this Agreement or any supplemental Agreement of the parties.

            9.         The decision of the arbitrator shall be final, binding and conclusive.

SUPPLEMENTAL AGREEMENTS AND UNDERSTANDINGS

            2.         DISCIPLINARY ACTIONS

                        The Company will not consider disciplinary actions resulting in no time off, occurring more than 18 month (sic) in the past, and disciplinary action resulting in time off, occurring more than 24 months in the past, in determining future disciplinary actions, provided there have been no subsequent actions. 

                                                                        Jt. Ex. No.1. 

                                                    STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

            The Grievant began his employment with the Company in October of 1997.  In October of 2002, when the disciplinary action was taken that is in issue here, he had completed five years of service and was classified as a Security Patrol Officer (SPO) III-C on the Special Response Team (SRT).

            His previous disciplinary actions included a three-day suspension in 1998 for driving a patrol vehicle into a ditch and causing damage to the vehicle and a written reprimand, issued on May 22, 2002, for exceeding the posted speed limit in a patrol vehicle and participating in a “driving competition” with another patrolman.  See Company Exhibits 10 and 6.  Only the 2002 reprimand remained on his active record at the time of the instant disciplinary action, however.

            The Grievant received on-the-job training in defensive driving techniques.  He also underwent extensive training on making safe turns in the Evasive Obstacle Course (EVOC).  

            On March 25, 2001, the Grievant underwent training on the design specifications and mechanics of operating the Company’s V-150 armored personnel carrier vehicle.  See Company Exhibit 8.  That program was approximately one-half hour long and was conducted either by viewing a Power Point presentation or a videotape,[2] as opposed to listening to lectures given by a live instructor.  See Company Exhibit 7.  After that 2001 training, the Grievant asked for an opportunity to practice driving the V-150.  Captain Robert Morrow, who had been in charge of the presentation, helped the Grievant get into the vehicle in the parking lot and showed him how to get it started.  The Grievant then spent approximately two hours driving the vehicle around the parking lot by himself, during which he practiced starting and stopping the vehicle, going forward, backing up and making turns.  He did not drive the vehicle out on the open road at that time.  

            There is no evidence that the Grievant was given specific instructions about dealing with highway driving in the V-150 at any time.  Also, he was never tested on his knowledge about the vehicle and its limitations.

            The V-150 is a tank-like vehicle with large wheels and an engine in the rear.  It weighs approximately eight tons.  It features an automatic transmission and is capable of reaching a maximum speed of 56 miles per hour.  The driver operates a steering wheel, accelerator and brake in a similar manner to driving a passenger automobile.  An ordinary state-issued driver’s license is all that is required of the driver, rather than a commercial driver’s license or chauffeur’s license.  

            The driver and passenger ride in a small hatch-type compartment while the V-150 is in motion.  The hatch can be opened to the sky and raised above the top level of the vehicle itself.  With the hatch open, the occupants sit up about eight feet above the level of the road.   Because of the configuration of the hatch, a driver who is short has to stretch his right leg to reach the pedals.  Also, it is difficult to read the gauges and dials on the dashboard with the hatch open, because the large, flat, bus-type steering wheel interferes with the driver’s view of the gauges.  

            For safety, the driver and passenger must wear protective helmets and goggles, as well as seat belts.  The helmets and goggles are designed in such a way that the V-150’s occupants have full external vision capability, both frontal and peripheral.  There also are large mirrors on the vehicle, by which the occupants can view any vehicles approaching from the rear.     

            The V-150 was designed specifically for use in off-road maneuvers.  Only SPO IIIs, who perform roving patrols at Hanford, were authorized to operate the V-150 in 2002.[3]  According to the Grievant’s testimony, the V-150 had to be driven ten hours per month.[4]  

            The Grievant enjoyed driving the V-150.  Since he was not very tall (5’9”), he could fit more comfortably in the driver’s seat than others on his shift team.  Therefore, he was designated as his shift’s regular V-150 driver for most practice runs.   He testified that he routinely took the vehicle out on an old highway, where the speed limit was mostly 25 miles per hour.  He had practiced turning the vehicle at 90-degree T-intersections, slowing the vehicle to about five miles per hour when making such turns.

            On the afternoon of September 25, 2002, the Grievant was directed by his supervisor, Lt. Cortina, to drive the V-150 from the Wye Barricade back to Special Response Team (SRT) Headquarters, a distance of several miles.  The Grievant and a passenger, Officer Moreno (who also was authorized as a V-150 driver), put on helmets and goggles and climbed into the vehicle. The driving hatch was raised and open for the trip.  The weather was clear and dry.  

            The Grievant drove the vehicle without incident on Highway 4 for an undetermined distance.  The speed limit on Highway 4 is 55 miles per hour.  The traffic was moderately heavy, as the work shifts were changing.  As the V-150 climbed a long hill near the Canton Road exit, a number of passenger vehicles accumulated behind it.  The Grievant pulled into the exit lane of Highway 4 to let the traffic pass by.  He also made the decision to turn off the highway at the Canton Road exit and take the First Avenue route back to SRT headquarters.[5]  There were other routes he could have chosen.  For instance, he testified that he had always used the Baltimore exit (which is the next exit after Canton) when driving to headquarters from the Wye Barricade.

            The specifics of what happened next are in dispute.  It is undisputed, however, that the V-150 rode for a brief distance in the dirt and gravel off the shoulder of the exit lane of Highway 4 and along the curved 90-degree turn lane leading onto Canton Road.  Then the vehicle turned left, crossed both lanes of Canton Road and hit an asphalt mound approximately one foot in height on the opposite shoulder, which caused the front end to tip upward and allow the driver and passenger to see the open sky above them for a few seconds.  The vehicle then continued on across both lanes of First Street, which runs perpendicular to Canton Road, and came to rest in the sand and gravel off the far shoulder of First Street.  At that point, the Grievant checked to make sure that passenger Moreno was okay.  He then got back onto First Street and continued on to headquarters.  After arriving at headquarters, the Grievant told his supervisor, Lt. Cortina, that he had “tested the suspension on the V-150” on the return trip.  Cortina asked the Grievant if he had gone “up on two wheels” and the Grievant said “No”.  Cortina responded that he’d keep it between them and nothing more would come of it.

            A pick-up truck belonging to Clark Construction had been following the V-150 on Highway 4 as it entered the exit lane on Highway 4 and turned onto Canton Street.  A passenger in the vehicle, Torchey Cohu, and his driver, Colin Tebay, had observed the V-150 as it traveled the route described in the preceding paragraph.  The following day, Cohu and Tebay, who were heavy-equipment employees of Clark Construction and members of a union, made a report of what they had observed to their own company’s safety manager.  Their report was subsequently transmitted to Fluor Hanford, Inc. management and an investigation ensued.

            Following the Company’s investigation, a decision was reached that the Grievant merited discipline for his manner of driving the V-150 on September 25, 2002.  The following disciplinary notice was issued on October 14, 2002:

            On September 25, 2002, your operated a Hanford Patrol V-150 Armored Personnel Carrier (APC) with a deliberate disregard of safety rules and safety procedures.  In addition, you deliberately misused company or government equipment (V-150).  You drove at an excessive speed while attempting to turn onto Canton Avenue, which caused you to drive into the ditch and cross two lanes of traffic twice (Canton Avenue and First Street).  Subsequent to crossing Canton Avenue, you hit an asphalt embankment causing the V-150 to go “airborne” for 22 feet.  Also, according to two eyewitnesses, but refuted     by you, you nearly struck a passenger car on First Street.  Although no personal or property damage was incurred, your actions could have resulted in tragedy.  Furthermore, the Board found your explanation of the event to be less than plausible based on the physical evidence and witness statements.
                                                                                    See Company Exhibit 2.

            The disciplinary action that was taken against the Grievant was a ten-working-day suspension, a permanent demotion from the Grievant’s SPO III classification to SPO II, with concurrent loss of a $60-per-week pay premium for the SPO III designation, and a “Last Chance” warning, which was stated as follows:  

            “You must understand that this is your last chance and that any future violations of the PHMC Standards of Conduct, not necessarily of the same type, will result in the termination of your employment.”                                  See Company Exhibit 2. 

It is that action that is grieved in the instant arbitration.

POSITIONS OF THE PARTIES

            A.        The Employer:            The Employer contends it had just cause, as required by the parties’ collective bargaining agreement, to discipline the Grievant in the manner set forth in the October 14, 2002 notice.  The Grievant deliberately disregarded safety rules and procedures and misused Company property, both of which are considered “Extremely Serious Misconduct” in the PHMC Standards of Conduct and could have resulted in immediate discharge.  See Company Exhibit 3.  The Company chose to mitigate the level of discipline, however, by relying on rule 5 under “Serious Misconduct,” failure to follow operations or other procedures.  The proposed penalty for such a violation, when it is the first infraction, is a suspension of at least three days.  More serious discipline, including discharge, may be warranted for subsequent infractions of the same type, according to the PHMC Standards of Conduct.  See Company Exhibit 3.

            The Company contends that the Grievant drove at an excessive speed on Route 4, as he approached the turn at Canton Avenue, on September 25, 2002.  All of the movements of the V-150 from the time the vehicle entered the exit lane and turned onto Canton Avenue show that the Grievant, as driver of the 8-ton tank-like vehicle, was out of control, either negligently or intentionally.   If there had been another vehicle in the V-150’s path, either on Canton Avenue or on First Street, serious personal injuries and property damage would have resulted from the collision that would have taken place.  And, according to the testimony of an independent eyewitness Torchey Cohu, such a collision nearly did occur, because a green Ford Taurus vehicle with a female driver had been approaching the intersection of First and Canton as the V-150 went across both lanes of First and ended up in the desert.

            The Employer asserts that the evidence is clear and convincing regarding the Grievant’s culpability in creating a dangerous situation.  He was an experienced driver, having been trained on the V-150, and he had been instructed in defensive driving techniques, which he ignored.  

            The Company conducted a full and fair investigation.  In addition to interviewing witnesses, the Company interviewed the Grievant to obtain his version of the facts and found his story to be not credible.  

            The suspension, demotion and “last chance” warning were appropriate forms of progressive discipline, according to the Company, pursuant to Article II B of the parties’ collective bargaining agreement.  The Grievant already had one motor vehicle infraction on his record – involving a “driving competition” with a co-worker – and the Employer needed to impress upon him that he needed to follow the Company’s rules of conduct or risk being  discharged.  

            The Employer asks the arbitrator to deny the grievance and uphold the discipline.

      B.         The Union:                  The Union contends that the disciplinary action was not for just cause.  The Union does not deny that the Grievant was going too fast to make the turn off the Highway 4 exit ramp onto Canton Avenue safely.  The Union asserts, however, that the Grievant had been inadequately trained and did not know how to handle the vehicle under the particular circumstances that existed on September 25, 2002.  In spite of his lack of training, he made many sensible decisions quickly, and as a result, he caused no damage or injury to others and he protected the V-150 from tipping over and causing death or serious injury to himself and passenger Moreno.

            The Grievant had no foreknowledge that the type of conduct that was proven in this matter would lead to discipline.  He did not deliberately disregard any safety rules or procedures or misuse Company property.  His actions were reactive only and were designed to protect himself, his passenger and others in accordance with defensive driving techniques.

            The Company failed to conduct a full and fair investigation.  It relied on the reports of two purported eyewitnesses (Cohu and Tebay) who had been in the same car together and had likely talked to each other about what they thought they had observed.  Those two men were interviewed at the same time and prepared their witness statements together, in violation of Company policy.  Also, although they both stated they had seen a Green Ford Taurus near the intersection of First and Canton, no such vehicle was ever found.  Therefore, the Cohu/Tebay story about a near-miss collision was uncorrorborated and should not be considered credible.

            Finally, the Company did not apply its rules, orders and penalties even-handedly when it issued the discipline to the Grievant.  The ten-day suspension and permanent demotion were more harsh disciplinary action than had been issued to other employees who had caused significant damage to Company property in the past.

            For these reasons, the Union asks the arbitrator to grant the grievance and award an appropriate remedy.

ANALYSIS AND DECISION

      The arbitrator’s role is to interpret and apply the parties’ collective bargaining agreement. In the instant case, two articles of the parties’ agreement reference the standard that the arbitrator is to apply in a discipline case.  That standard is just cause.  Articles II (1)(B), XX(2).  

            The burden of proof and of persuasion, to establish just cause, is on the Employer, not the Union. Also, as both parties have recognized in their briefs, arbitrators ordinarily require clear and convincing proof in such a case, especially where, as here, the Grievant has suffered a loss of premium pay as a result of his demotion and his future employability may be at stake, because of the “last chance” warning that was part of the disciplinary action.

            There is a long tradition whereby arbitrators  determine “just cause” by asking a series of seven questions, or “tests”.  The tests were developed by Arbitrator J. Carroll Daugherty in 1964. See, e.g., Grief Bros. Cooperage Corp., 42 LA 555, 557-59 (Arb. Daugherty, 1964).  According to Daugherty, a “No” answer to any of the seven questions leads to a conclusion that the Employer did not have just cause at the time the disciplinary action was taken.   The Union, in its brief, asked the arbitrator to apply the Daugherty tests, and the Employer did not suggest any alternative theory.

            The trend among arbitrators is changing today and the seven Daugherty tests are not applied as strictly as they once were. Arbitrators are more likely today to limit their inquiry to a few simple questions, which incorporate the basic principles that are contained in the Daugherty tests, but are more flexible, such as:

(1) Was the employee afforded fundamental due process rights, including providing him with foreknowledge that his conduct was likely to lead to discipline, treating him similarly to other employees under similar circumstances, and conducting a fair investigation into the facts, before the decision to discipline was reached?  (Due Process)

(2) Did the Employer have adequate proof that the Grievant committed the misconduct of which he was charged? (Did he do it?)  and 

(3) Was the penalty that the Employer issued reasonably related to the seriousness of the proven offense, the employee’s disciplinary record and any mitigating or extenuating circumstances? (Reasonable Penalty)

See, e.g., Lankford et. al., “Did He Do It?: Employer Handbook ‘Just Cause’ Meets the Collective Bargaining Agreement”, Arbitration Under Oregon’s PECBA (Univ. of Oregon Labor Education and Research Center Monograph Series No. 17, 2003), p. 23.[6] 

The arbitrator has determined that those questions are relevant to the determination of just cause in the instant case.  Her analysis will therefore be divided into the categories of Due Process, Did He Do It? and Reasonable Penalty.

A.        Due Process:

(1)        Foreknowledge:         Employers may notify their employees of rules governing appropriate workplace behavior in a variety of ways.   Written rules may be published in an employee handbook, posted on an employee bulletin board or distributed individually to employees.  Sometimes rules are communicated verbally.  There are some kinds of activities, however, that employees are generally expected to know will not be tolerated on the job, even if express notice is not provided by management. Employees, by using common sense, are deemed to know that discipline will likely be imposed if they engage in such activities.  See, e.g., Brand (Editor), Discipline and Discharge in Arbitration (BNA Books, 1998) at page 287-291.

            The Company has promulgated a document entitled PHMC Standards of Conduct, and all employees have been directed to abide by those standards.  See Company Exhibit No. 3.  According to Company Witness Dickinson, the Standards are routinely discussed at orientation and posted on employee bulletin boards and computers.  “Deliberate disregard of safety rules and safety procedures” and “deliberate misuse or damage to Company property” are both listed as examples of “Extremely Serious Misconduct” and “failure to follow operations or other procedures” is listed as “Serious Misconduct”.    Id.

            The Grievant clearly had been notified of those standards on September 25, 2002, not only through the ordinary distribution, but also through a written reprimand that he had received just four months earlier for being involved in a “driving competition” with another patrolman.  The disciplinary letter he received had recited those very rules as the basis for his reprimand.  Also, he had been advised to “re-evaluate [his] adherance to policies and procedures, particularly those that apply to safety rules and practices” and had been warned that “[f]uture violations. . . [could] result in further disciplinary action up to and including termination.”  See Company Exhibit No. 6.

            The arbitrator finds that driving a vehicle at an excessive speed under the conditions present at a particular time and place, thereby putting other persons or property at risk of harm, falls among those circumstances that employees are generally expected to know will not be tolerated on the job, even if express notice has not been provided of that expectation.  Through common sense, employees should know, for example, that discipline will likely be imposed if they intentionally drive too fast on a slick or foggy road, and, as a result, they cross the center line into the path of on-coming traffic or go off the road into a ditch, regardless of whether they have been driving within the posted speed limit at the time the incident occurs.

            The arbitrator is persuaded further that the Grievant reasonably should have known, based on his experience driving the V-150 for at least 18 months after March 25, 2001, that it would be unsafe to drive the V-150 at highway speed on the exit lane of Highway 4, while intending to turn onto Canton Avenue, and that maintaining such speed would be likely to cause him to lose control and go off the road.  He knew or reasonably should have known that if he failed to slow down substantially before making the turn, he would be driving in an unsafe manner and could be subject to disciplinary action for his conduct.  

The Grievant acknowledged he had driven the V-150 on paved roadways approximately ten miles per week, or ten hours per month.  The arbitrator has inferred from that evidence that he had driven the vehicle well over 500 miles in all.  He said he had turned the vehicle at T-intersections and he knew that such turns had to be made very slowly, about five miles per hour. 

            The Union makes much of the fact that the Grievant had not been trained by a fully certified instructor on the operation of the V-150.  Also he had never been tested on his knowledge of the vehicle’s capabilities.  The Union implies, therefore, that the Grievant was unaware of the vehicle’s limitations and had no idea what speed would be safe when driving the vehicle on a sweeping turn lane off of a 55-mile-per-hour highway.

The Union is correct that the Company failed to show that the Grievant’s trainer on the V-150, Captain Morrow, met the certification requirements of the DOE Protective Force Program Manual.  See Union Exhibit 15, Section IV-9.  That fact becomes irrelevant, however, when one considers the extensive experience that the Grievant had in driving the vehicle.  Even though he had not driven the vehicle on Highway 4, or any other road where the speed limit was 55 mph, he was well aware of the size, weight and feel of the vehicle and he knew that the vehicle was hard to control when brakes were applied on turns.  Because of his real-life knowledge and experience, therefore, he knew or should have known he should slow down the vehicle to a near-crawl in order to make a safe turn off a 55-mph highway onto a side road.

            (2)  Even-handed treatment:  It is axiomatic that employers must treat employees who are similarly situated in a similar fashion when they issue discipline for misconduct.  Arbitrators often find that there was no just cause for a particular disciplinary action where the evidence shows that the grievant was treated differently from other employees who had committed similar infractions. 

The Union contends that the Company did not treat the Grievant similarly to other employees who had been involved in unsafe vehicular conduct in the past.  The Union cited four instances of on-the-job auto accidents, where the employee-drivers had only been issued reprimands or suspensions.  None of the four had been demoted or lost premium pay on an on-going basis as a result of their actions.  See Union Exhibits Nos. 2-5.  One of them, Patrolman Roggenkamp, had caused over $8,000 property damage when he spun out and lost control of his vehicle.  It was his second such avoidable accident in eight months.  Yet he was issued only a 14-day suspension and last-chance warning, no demotion.  See Union Exhibit No. 5.  The Grievant, however, was demoted permanently, thereby losing a $60-per-week premium, in addition to a ten-day suspension and “last-chance” warning for his second vehicular offense, even though he did not cause any property damage or personal injury.

Company Witness Dickinson testified that the Company’s practice is to evaluate all the facts and circumstances of each case individually and impose appropriate progressive discipline.  He pointed out that three of the four situations cited by the Union were first-time offenses.  Roggenkamp, whose offense was a second one, was treated similarly to the Grievant, with the exception of getting a demotion and loss of premium.  The Company did not have the option to demote Roggenkamp, however, because he was already at the SPO II level; he was not an SPO III.  Dickenson also pointed out that a fifth employee, Patrolman Apgar, had also been involved in unsafe driving and his discipline had been the same as that implemented against the Grievant in the instant case.  Apgar had been involved in the “driving competition” with the Grievant in May of 2002, and it was his second vehicular offense, whereas the Grievant was only guilty of a first offense at that time.  See Company Exhibit 6.

            The arbitrator finds that the Company has made reasonable efforts to treat its employees even-handedly.  The Grievant was not treated differently from others who were similarly situated.   Even though no property damage or injury resulted from his driving on September 25, 2002, one could infer from the evidence that a collision would have occurred if any vehicle had been in the Grievant’s path on the oncoming lane of either Canton or First at the moment the V-150 crossed those lanes.  Clearly, the Grievant was fortunate that no damage or injury occurred.

            (3)        Fair Investigation:     The Union contends that the investigation was not conducted fairly, in keeping with the Company’s policies for conducting investigations.  See Union Exhibit No. 6.  The Union raises a number of arguments in support of that contention.

First, the Union asserts that the Company relied completely on the statements of witnesses Cohu and Tebay, and only tried to locate a female driver of a green Ford Taurus, which those witnesses said they had seen traveling on First near its intersection with Canton when the V-150 crossed First.  The Company made no effort to find other witnesses, such as the driver of a blue pick-up with a chrome grille that the Grievant said he had seen approaching a significant distance from the intersection of First and Canton, or a tan sedan, which passenger Moreno said he remembered seeing in the distance on First.[7]  Either of those witnesses, if found, could have contradicted the Cohu-Tebay story.

The Union also contends that the Company violated its investigation policies in the manner of interviewing Cohu and Tebay on September 26, 2003.  Cohu and Tebay had been traveling in the same vehicle on September 25, 2002 and undoubtedly had talked about what they had seen.  In spite of their potential for collaborating, the Company investigator allowed them to confer during the preparation of their statements at the scene.  Also, they were probably influenced by what they overheard at the site while the investigation was going on, because, amazingly, the figure of 44 feet is quoted in their witness statements as the distance that the V-150 went airborne, and that happens to be the same figure that the investigators reported when they measured the distance between the asphalt ramp and the point where the V-150’s tracks appeared in the sand.

            The Union also alleges that the scene was not adequately preserved.  Therefore, the measurements that were taken by the investigators could have been for other vehicles besides the V-150.

            The arbitrator does not agree that the investigation was unfair.  Cohu and Tebay were independent witnesses who came forward on their own to report a situation that had caused them serious concern.  They were both members of a union and they were working for a different employer from Fluor Hanford.  They did not know the Grievant.  Therefore, they had no reason to exaggerate or fabricate facts in telling their story.   While it is true that they were together in the same car when their observations were made, and they both prepared written statements the following day by writing them out on the hood of their pick-up, the arbitrator is not convinced that Cohu and Tebay stated any facts that were not true in accordance with their recollection.

As for the measurements, Witness Cohu testified at the hearing that he had paced off 22 feet at the site, by walking between the asphalt ramp and the spot where he found large tire marks in the sand, and that was how he estimated the distance that the V-150 had traveled after going airborne.  The mere fact that 22 feet is also the distance that the investigating officer measured does not lead to a conclusion that witness Cohu had simply overheard that figure during conversations at the scene, as the Union suggests.

            The Company made a reasonable effort to find the driver of the green Ford Taurus that Cohu and Tebay remembered seeing at the scene.  Since there are many green Ford Tauruses at the Hanford site, either government-owned or Company-owned, it is possible to identify the people who were assigned such vehicles in the context of their jobs on any particular day.  The Company would have had no such way to reach the driver of a “blue pick-up”, or a “tan sedan”, however, as such vehicles would not be owned by the government or any contractor at Hanford and there would be no record of such vehicles or their drivers being on the reservation.

            Finally, the arbitrator does not find that the Company was obliged to preserve the site.  Testimony showed that most of the investigation took place one day after September 25, 2002, as soon as the Company was aware of the report by witnesses Cohu and Tebay.  The V-150 is a very distinctive and heavy vehicle with large tires.  It is highly unlikely that the tire tracks that were found and measured on September 26, 2002 could have belonged to any vehicle other than the V-150.  Those tire markings and measurements were very helpful to the investigators in determining whose story to believe, that of witnesses Cohu and Tebay or the Grievant’s story.[8] 

B.        Did he do it?

In the statement of charges, the Company accused the Grievant of deliberately misusing equipment by driving the V-150 at an excessive speed, crossing two two-lane streets improperly, going airborne for 22 feet and nearly striking a green Ford Taurus on First Street.  The Union denies that the Grievant’s conduct was deliberate, but argues that all of the actions that were taken after the V-150 left Highway 4 were reactive and were carefully and safely calculated to prevent any property damage or injury.  

According to the Grievant’s version of the facts, he had miscalculated his speed on the exit lane and suddenly realized, upon entering the turn, that he was going a little too fast.[9]  He remained entirely “in control”, however, and, because he was worried that the vehicle might fishtail or roll over if he used brakes, he tried to slow it down by driving through the sand and gravel shoulder.  When that didn’t work, he briefly considered getting back on Highway 4, but  suddenly realized that he risked hitting a blue vehicle that was heading towards Highway 4 on Canton if he tried to get onto the entrance lane.  So, noting that the route was clear for him to drive directly across Canton towards First Street and on across First and into the desert beyond, he chose that route.[10]   See also Union Exhibit 10.

            The Grievant’s story makes little sense and is contradicted by the testimony and evidence of other witnesses.  First, Company witness Major Guilio convinced the arbitrator that the Grievant would have had plenty of room to slow down, if not stop, the V-150 while he still was in the exit lane of Highway 4, and well before he got into trouble on the curve, if he had wished to do so.  Major Guilio made a test run at the site as part of his investigation and found he could bring the V-150 to a full stop in 400 feet on the exit lane, after driving at 55 mph on Route 4.  Giulio had applied the brakes and had not experienced any fish-tailing or tipping of the vehicle while making the stop. Since the exit lane was 819 feet long, he said, it actually allowed double the distance needed to bring the vehicle to a full stop.  Therefore, Guilio concluded that the Grievant could have applied brakes at any point in the 819 feet and at least slowed the vehicle substantially before entering the turn.  Since he failed to do so, his action in entering the turn at an excessive speed had to have been knowing and deliberate.

            Further, Witness Cohu testified that he saw puffs of black diesel smoke coming out the exhaust pipe of the V-150 as it drove into the sand and gravel of the shoulder and then crossed Canton, went up over the asphalt ramp and then continued across First Avenue.  He did not see any evidence of the vehicle slowing down until it was nearly at the end of its ride out onto the desert.  Based on what he had observed, Cohu said he believed the driver of the V-150 was intentionally testing what the vehicle could do and that the driver had intended to make the vehicle go airborne as it went across the asphalt ramp on the other side.

The arbitrator found the testimony of witnesses Guilio and Cohu to be credible.  Their recollections were clear and detailed, they looked straight at the arbitrator as they were testifying and they were unflappable during aggressive cross-examination.  Also, the witness statement of Calin Tebay confirmed Cohu’s version of the facts.  Tebay wrote, “The vehicle never stopped and didn’t seem to decelerate at any time.”  See Company Exhibit No. 11.

If, as the Grievant testified, he was going 35-40 mph as he entered the turn, then let the V-150 roll through the gravel shoulder beside the exit ramp, and never used the accelerator again, the vehicle would have slowed down as it went across Canton Avenue and then slowed even more as it went up over the asphalt ramp on the shoulder of Canton.  It is not believable that the vehicle could have gone airborne for 22 feet after hitting the asphalt ramp and then continued to roll across another double-lane road before finally coming to a stop.  Also, the Washington State Patrol finding that the Grievant was traveling at between 42 and 46 mph after crossing the asphalt ramp clearly impeaches his testimony.  Therefore, all the evidence points toward intentional conduct, as Witness Cohu theorized.

The arbitrator found that the Grievant’s testimony was not credible for another reason as well.  He admitted at the hearing that he had lied to his supervisor during the investigation of his May 22, 2002 racing incident.  He said he had lied to protect his co-worker, a friend of his who risked losing his job.  When a witness has a history of lying, that witness’s credibility is suspect. The fact that the Grievant found himself in a similar situation on September 25, 2002 to the situation his friend had been in in May of 2002, when he said he had lied to protect the friend’s job, means it more likely than not that he lied to protect his own job on September 25, 2002. 

Also, the Grievant made a less-than-forthright report to his supervisor at headquarters immediately following the incident itself.   He said to Lt. Cortina, “I tested the V-150’s suspension today,” but gave no further details.  If the Grievant’s conduct had been reactive only, and flowed from inadequate training on how to slow the vehicle, as he and the Union argue, he would have had no reason to camouflage what had really happened.  He would more reasonably have said something like, “I had a real scare today.  The V-150 wouldn’t slow down as I turned off Highway 4 and I had to take emergency action, but I was able to bring it to a safe stop eventually without causing any damage.  I need some more training on handling the V-150 in new situations, so I never have such an experience again!”  He could even have implemented an immediate stop-work order to ensure that nothing would happen until he received the training.

Based upon the foregoing findings, as well as the Grievant’s testimony at the hearing that he was “never out of control, but was in control the entire time”, the arbitrator agrees with the Company’s conclusion that the Grievant’s conduct on September 25, 2002 was deliberate rather than reactive.  The evidence shows that he intentionally drove too fast as he exited the highway and then continued to accelerate as he pursued the wild and unsafe cross-country route across two two-lane streets and over the asphalt ramp.  Then he intentionally hid the truth from his supervisor upon returning to headquarters.  

C.        Reasonable Penalty:

            The Union contends that the penalty the Company issued to the Grievant was excessive and not in keeping with the principle of just cause.  Specifically, the Union objects to the demotion of the Grievant from his status as SPO III C to SPO II, because that demotion results in a financial loss to the Grievant of a $60-per-week pay premium.  The Union argues that, when compared to the misconduct of other employees who have caused significant property damage, the conduct of the Grievant on September 25, 2002 was less serious, yet his penalty was more harsh.

            Earlier in this opinion, the arbitrator determined that the Company has been reasonable in its practice of issuing progressive discipline to employees who violate the standards of conduct.  Because of the particular combination of facts in the instant case, as well as the Grievant’s disciplinary record, the arbitrator has determined that the Company was reasonable, and not overly harsh or punitive, in implementing the particular disciplinary action that it took against the Grievant.

            In May of 2002, just four months prior to September 25, 2002, the Grievant had committed a serious safety violation with a Company motor vehicle.  He had become involved in a driving competition, better known as a drag race, while on the job.  The Company issued him a three-day suspension, which was a mitigated form of discipline for that offense.  Then when the Company learned, through the reports from Cohu and Tebay, and the subsequent investigation at the Canton-and-First site, that the Grievant had been driving the V-150, an 8-ton tank, in a wild and unsafe manner on his way back to headquarters, they were justifiably concerned that the Grievant had not learned his lesson from the three-day suspension in May.  Therefore, a more serious form of progressive discipline was needed to get his attention and impress upon him that he had to use safe driving techniques at all times, avoid “hot-dog” behaviors when behind the wheel and be forthright with his supervisors when reporting unusual events that occur on the job.

            The Grievant’s job required the highest attention to safety and security.  An SPO III-C is a roving patrol officer, and is trusted to follow the rules of the road and use best judgment when operating a motor vehicle.  Yet twice in four months the Grievant violated that trust and took unreasonable safety risks in vehicles.  Both times he exceeded the speed that was reasonable under the circumstances and each time he participated in an egregiously dangerous activity.  Neither time did he show remorse for what he had done or demonstrate a clear intent to change his behavior and follow all safety rules and policies in the future.

            The Company could have discharged the Grievant for his conduct on September 25, 2002.  It chose to mitigate the discharge to a ten-day suspension and demote him to an SPO II, with a “last chance” warning that further misconduct would lead to discharge.  That decision was reasonable under the circumstances.

            Demotion is one of the specific forms of discipline that is allowed under Article II of the parties’ collective bargaining agreement.  As a result of the demotion the Grievant will be more confined to a particular location in performing his duties than he was in his roving assignment as SPO III.

            The Union argued that the permanency of the demotion amounts to a de facto freezing of the Grievant’s professional career.  He will have no chance for advancement or promotion.  The Company pointed out, however, that the disciplinary action may be removed from the Grievant’s personnel file after one year if his record remains clean during that period of time.  See Article XVI (6).  He would then be able to apply for promotion to the SPO III designation, though the Company would be under no obligation to reinstate him to that assignment.  He would have to go through the regular application process and establish his eligibility, along with other applicants at that time.  Also, the disciplinary action cannot be cited in any future disciplinary matters, if the Grievant has a clean record for 24 months.  See Supplemental Agreement No. 2, p. A-35.  The arbitrator does not find, based on those facts, that the Grievant is necessarily precluded from serving as an SPO III throughout the entire rest of his career.  If he maintains a clean record from now on and proves that he is capable of earning a promotion to SPO-III, that action will not be foreclosed. 

            Therefore, the discipline that was issued on October 14, 2002 was not unreasonably harsh or punitive and did not violate the principles of just cause.  The grievance is denied.

AWARD

            For the reasons set forth in the preceding analysis and decision, the grievance is denied.  The parties shall share equally in the payment of the fees and expenses of the arbitrator.

            DATED this ____ day of December, 2003.

                                    _________________________________________

                                    SANDRA SMITH GANGLE, J.D.
                                    Arbitrator



[1] Company Exhibit 13 shows that Officer Morrow completed Basic Instructor Training at the DOE Central Training Academy in Albuquerque, NM, in 1995.  He completed Special Response Team Instructor Certification in 2000 and a Supervisor Development Course in 2001.  Other evidence in the record shows that Officer Morrow received his training in the operation of the V-150 by participating in the same training session as the Grievant, on March 25, 2001.  See Company Exhibit No. 8.  Curiously, Morrow signed the attendance list for the March 25, 2001 training program in the capacities of both instructor and participant.

[2] Captain Morrow testified that he had used a Power Point presentation on March 25, 2001 and that, as the slides progressed, the trainees took turns reading the text on each slide out loud.  The Grievant testified that he had reviewed a 3-ring binder containing photos and textual material about the V-150 sometime prior to March 25, 2001, and that he had watched a videotape on a TV monitor on March 25, 2001. The two witnesses did not disagree as to the content that had been covered in the various presentations, however.  It was essentially the same material that is included in Company Exhibit 7.

[3] Use of the V-150 has been disbanded by the Company.  The Union filed a stop-work order sometime after the events of this case occurred, on the basis that the vehicle was unsafe.  Then, later, the Company decided to use Humvees instead of V-150’s for off-road exercises.

[4] The rules booklet entitled Hanford Patrol Armored Personnel Carrier provides that such a vehicle “will be driven approximately 16 kilometers (10 miles), once a week. . . on hard-surface roadways within the respective areas.”  See Company Exhibit No. 5, p. 3.

[5] Canton Road leads to a new facility on the Hanford Reservation property.  If one travels a short distance on Canton, however, one can turn left (a 90-degree turn) onto First Street and follow First, a long, straight road, back to headquarters.  The Grievant was familiar with the intersection of Canton and First, because he had performed vehicle inspections there in 2001.

[6] The authors of the article reviewed 127 reported discipline cases in Volume 114 of Labor Arbitration Reports and found that only two arbitrators had specifically applied the Daugherty tests in 2000.  Sixty-four of the arbitrators, however, had applied the new central question: “Did he do it (i.e., Did he commit the misconduct of which he was charged)?” and most of them had applied flexibly-worded standards, such as those that are summarized above.

[7] Cohu and Tebay both reported seeing a female driver in a green Ford Taurus near the intersection of First and Canton.  That vehicle was nearly struck, they said, as the V-150 went over the asphalt ramp and crossed First Street, but the woman had continued on without stopping.  The Grievant and his passenger, Officer Moreno, denied seeing a green Ford Taurus.  They said the nearest vehicle was far away from the intersection.  They did not agree as to what that vehicle lookeed like, however.

[8] Using those measurements, the Washington State Patrol eventually issued a report containing that agency’s findings regarding the speed that the V-150 had been moving when it landed in the sand and continued across First Street after going airborne.  See Company Exhibit No. 9.  The WSP found that the V-150 was traveling between 42 and 46 mph at the time it landed in the sand after going airborne over the asphalt ramp.  Since the WSP document was dated November 22, 2002, it was clearly unavailable to the Company prior to October 14, when the disciplinary action was taken against the Grievant. Therefore, the arbitrator has not considered the WSP’s findings as part of the Company’s proof in its case-in-chief. However, she has considered the evidence as impeachment of the Grievant’s testimony about speed.

[9] He said he first thought he was going 20-25 mph, but then decided he must have been going 35-40 mph when he realized he had misjudged his speed.  He said the speedometer was hard to see, so he didn’t look at it.

[10] Curiously, the Grievant did not mention that there happened to be a chain-link fence a short distance straight ahead of him and, if he had continued on in the gravel shoulder, he would have knocked down the fence.

 

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