Title: Rabanco Recycling and Teamsters Local Union No. 117
American Arbitration Association
This arbitration arises pursuant to a collective bargaining agreement (hereinafter the AGREEMENT) between the TEAMSTERS LOCAL UNION NO. 117 (hereinafter the UNION), on behalf of Vinh Ho, and RABANCO RECYCLING (hereinafter the EMPLOYER), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.
A hearing was held before Arbitrator Gaba on May 8, 2003, in Seattle, Washington. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. No transcript of the proceedings was provided. Both parties filed post-hearing briefs that were received on or around June 10, 2003.
On behalf of the Union:
Tracey A. Thompson
On behalf of the Employer:
Joseph L. Davis
The Teamsters Local Union No. 117 and Rabanco Recycling are parties to a collective bargaining agreement dated January 1, 2002 – December 31, 2005.
The parties stipulate to the following statement of the issues: Did the Employer have just cause to terminate Vinh Ho? If not, what is the remedy?
The “Agreement Between Rabanco Recycling Third & Lander Division and Teamsters Local Union No. 117” contains the following relevant sections:
ARTICLE 3 -DISCRIMINATION
3.01 No employee with seniority shall be discharged except for just cause.
ARTICLE 8 – SETTLEMENT OF DISPUTES
8.05 The decision of the arbitrator shall be rendered in writing within thirty (30) working days after the close of the hearing and such decision shall be final and binding on all parties hereto. Any decision rendered shall be within the scope of this Agreement and shall not add to or subtract from any of the set terms of the Agreement, nor shall such decision create a basis for retroactive adjustments. The arbitrator’s decision shall be consistent with federal and state employment laws and regulations, including the National Labor Relations Act.
8.06 If a matter is submitted to arbitration by the Board of Adjustment, the cost of the arbitrator will be borne equally. Each party shall be responsible for its attorney fees and costs, to include the expenses of any witnesses called to testify on its behalf. Neither the Board of Adjustment nor any person or persons designated by them shall have the power to negotiate new Agreements or change the provisions of this Agreement.
Rabanco Recycling of Seattle, Washington transfers solid wastes and construction debris, and operates a recycling plant at Third and Lander in Seattle for the purpose of receiving, sorting, and bundling recyclable materials for shipment. Mike Rorvik is the General Manager of Rabanco Recycling and Art Bridges is the Recycle Plant Manager who oversees plant production and administration, including safety and quality control, for the Third & Lander Division facility. Johnny Son supervises the day crew for that plant. The plant employs ten equipment operators who are represented by Teamsters Local No. 117, and approximately 80 other employees.
Both Vinh Ho and Jim Roemer worked in the Curbside area of the facility. This area consists of two bays, Bay 10 and Bay 11, each approximately 25 feet across. At the south entrance, a large cement post divides these bays, and at the north end of Bay 10 a retaining wall approximately 50 feet inside the building separates Bay 10 from a sorting line. Recycle trucks drive in and out through Bays 10 and 11 to dump recyclable waste in the curbside area.
Jim Roemer worked at the plant as a Quality Control Inspector, responsible for collecting samples of recyclable materials that were offloaded into Bay 10 and sometimes Bay 11, in order to sort, weigh, and record those samples in his work area, which abutted Bay 11 to the east. While working, Mr. Roemer wore earplugs, headphones, a respirator, a white hat, orange coveralls and a bright orange protective vest. In September 2002, there was a painted yellow line but no physical barrier separating Mr. Roemer’s work-station from the rest of the Curbside area. The yellow line had been painted subsequent to a complaint by Vinh Ho that Mr. Roemer sometimes worked outside of his station and was thus endangered by the trucks and front loaders in the Curbside area
Vinh Ho worked as an Equipment Operator at the plant for almost all of his employment by Rabanco, from August 1988 until his termination on November 1, 2002. During his 14 years of employment with Rabanco, Mr. Ho was issued only three disciplinary notices: two in 1993 and one in 1997. Additionally, he was involved in an episode in 1994 that resulted in damage to a customer’s truck. At the time of the accident that led to his termination, Mr. Ho was driving a 25-foot long, 20-ton articulated front loader. His job was to stack offloaded recyclable materials in a pile against the retaining wall at the north end of Bay 10, and to scoop and transport loads of materials to a receptacle located approximately 60-75 feet inside Bay 11, on the east end of the sort line.
On September 24, 2002, at approximately 10:00 a.m., Mr. Ho ran over and crushed Mr. Roemer under the loader he was driving. Immediately after the incident, Mr. Ho ran to Bay 9 to alert Ahn Tong, a co-worker. They contacted another co-worker who radioed for Supervisor Johnny Son. An ambulance and police arrived at the site, as did General Manager Mike Rorvik, Plant Manager Art Bridges and other co-workers. Mr. Ho was interviewed by the police and then met with Heather Lawton, District Safety Manager, and Dan Garcia, Regional Safety Manager, to provide his account of what had happened. Rabanco personnel took photographs of the front loader’s position and the final resting position of Mr. Roemer’s body. These photographs were given to Seattle Police Department Officer J. Kappel, who forwarded them to the Department’s Traffic Collision Investigation Squad. An Incident Report (Incident Number 02-431650) was prepared by Officer Kappel. Mr. Roemer was transported to Harborview Medical Center, where he was pronounced dead at 11:06 a.m.
The accident was investigated by the Seattle Fire Department, the Seattle Police Department, and Washington State Department of Labor and Industries (L&I). On October 30, 2002, Washington State Labor and Industries finished its investigation, concluding in its report that Mr. Roemer had been in the traffic area outside the caution zone when he was struck. The report assigned no specific blame to Mr. Ho for the accident. L&I met with Mr. Rorvik, Mr. Garcia, and Ms. Lawton on that day to discuss the findings. At that meeting, Rabanco was informed that the company was being issued two citations and that L&I believed, though the report did not state this, that Mr. Roemer had died as a result of being run over by the left front wheel of the front loader driven by Mr. Ho. A decision was then made to terminate Mr. Ho, with the reason for termination cited on the Personnel Action Request filed October 31, 2002  as “substantial fault – misconduct.” Mr. Ho, who had been on leave since the accident, using accrued sick leave and vacation, was informed of his discharge by Mr. Rorvik on November 1, 2002.
Mr. Ho filed a grievance through Teamsters Local Union No. 117, and Wil Rance, Business Representative of the Union, wrote to Rabanco General Manager Mike Rorvik on November 6, 2002, to inform him of this grievance. The Employer and the Union were unable to resolve the grievance and, in accord with the terms of the Agreement, contacted the Federal Mediation and Conciliation Service and arranged for David Gaba to conduct an arbitration on behalf of the parties. The arbitration hearing was held on May 8, 2003, in Seattle, Washington.
POSITION OF THE UNION
Teamsters Local Union No. 117 argues that the Employer has not met its burden of proof that it had just cause to terminate Mr. Ho’s employment. The Union in its brief makes explicit reference to the Employer’s discussion at the arbitration hearing of previous warning notices Mr. Ho had received from Rabanco. The Union points out that these warnings had not been identified prior to the hearing and that they fall outside the Employer’s established practice of discipline becoming null and void for purposes of progressive discipline after one year; the Union thus contends that the warnings cannot legitimately be used to justify the termination.
The Union further points out that the Employer itself concluded that there had been no misconduct on the part of Mr. Ho, and contends that the Employer, in its determination that Mr. Ho should be terminated, focused on the consequences of the accident rather than on Mr. Ho’s conduct. The Union cites the decision of Arbitrator Axon in United Parcel Service, (Axon, May 7, 1996) to emphasize this contention: “The tragic circumstances of the accident alone – including the fact that it involved the death of a very young child – cannot transform the nature of the grievant’s conduct.”
Further, the Union notes that the Employer in its cross-examination of the Union’s Business Representative, Wil Rance, took the position that Mr. Ho had been rightfully terminated for what it deemed “gross negligence” although there had been no such characterization made prior to that time. Additionally, regardless of the timing or consistency of such characterization in this case, the Agreement does not specifically provide for termination without notice for gross negligence.
The Union next turns to the language in the Personnel Action Request that referred to “substantial fault” on the part of Mr. Ho. It is the Union’s position that the Employer did not establish just cause because it did not conduct an investigation into fault, either by means of an independent investigator or an internal investigation, to determine whether Mr. Ho had any fault in the accident. The Union points out that communication between the Employer and Mr. Ho was limited: Mr. Rorvik never spoke to Mr. Ho about the accident, and that the only time Mr. Ho met with company representatives was when he met with the District Safety Manager and the Regional Safety Manager on the day of the accident to describe his perception of the events. Further, the Union notes that although Mr. Rorvik indicated his decision to terminate Mr. Ho was predicated on the conclusions of the Washington State Labor and Industries investigation, he had not read their report prior to making his decision. The Union further notes that neither Mr. Bridges nor Mr. Son were consulted prior to the termination decision being made, even though such consultation would have been normal procedure. Finally, the Union points out that the Employer itself has argued that the Labor and Industries investigation was not conducted to determine fault.
The Union contends that discharge is an unreasonable penalty for involvement in an accident, considering the lack of proof of either misconduct or substantial fault on Mr. Ho’s part; it therefore asks that mitigating factors be accounted for in evaluating the reasonableness of that discharge. Factors cited by the Union are as follows: the contribution of defective machinery, namely the front loader reverse alarm; the Employer’s failure to enforce workplace safety rules; the contribution of Mr. Roemer’s behavior to the accident; and the lack of evidence that Mr. Ho failed to observe a safety rule.
With the previous contentions in mind, the Union requests that Mr. Ho be reinstated with back pay, benefits and interest, less any earnings received from the date of termination (or the end of any unpaid suspension period the Arbitrator deems appropriate).
POSITION OF THE EMPLOYER
Rabanco Recycling in its Post-Hearing Brief argues that Mr. Ho failed to follow established safety standards and common sense, stating that he was “wanton and grossly negligent” in “not looking in the direction he was backing.” The Employer goes on to discuss numerous cases where ordinary negligence resulted in termination or suspension. For instance, citing Colorado-Ute Electric Association wherein the arbitrator concluded that installation of an alarm system by an employer after a near accident did not exonerate the grievant from fault, the Employer concludes that Rabanco’s installation of a new traffic system after Mr. Roemer’s death (so pedestrians could signal their presence in Bays 10 and 11) should not be construed as evidence of the Employer’s culpability or of Mr. Ho’s lack thereof.
The Employer goes on to address what it categorizes as anticipated defenses on the part of the Union, discussing the Employer’s instruction that employees entering an area where forklifts and loaders are in operation are to establish eye contact with the operators of those machines as a safety measure. The Employer concludes that to use the above instruction to fault Mr. Roemer for his own death is illogical, inasmuch as it was Mr. Ho’s obligation to look in his direction of travel before proceeding. It is the Employer’s contention that a preponderance of the evidence suggests Mr. Roemer was attempting to attract Mr. Ho’s attention at the time of impact, because he was facing the loader when Mr. Ho swung his cab to the left as he was backing into Bay 10.
With further attention to the safety instruction above, the Employer notes that Mr. Roemer was a fanatic about safety, and again the Employer concludes that the onus was on Mr. Ho to safely operate his machinery rather than on Mr. Roemer to attract Mr. Ho’s attention. The Employer maintains that there is no evidence that Mr. Roemer failed to exercise due care and thus concludes that no fault can be placed on him.
The Employer addresses the question of whether Rabanco contributed to the accident, referencing documentation that Mr. Ho had received substantial training with respect to safety practices. The Employer notes that Mr. Ho had taken a test and obtained a Certificate of Training only slightly over a year before the accident. With reference to the Washington State Labor and Industries citations of Rabanco on January 8, 2003, the Employer notes that both items in those citations (with respect to employees and management being outside of caution zones and to the inaudibility of the reverse signal alarm on Mr. Ho’s front loader) are under appeal. The first citation is represented as a consequence of the state investigator misunderstanding the parameters of normal employee work areas. The second citation pertaining to the alarm audibility is contested in terms of the accident by the argument that the alarm was checked both before and after Mr. Ho’s shift on the day of the accident and was not found faulty, and that a servicing of the front loader only three days before the accident found nothing wrong with the alarm.
The final argument addressed by the Employer is whether the discharge itself was procedurally flawed. The Employer disputes the Union’s contention that Mr. Ho was treated unfairly or without due process, contending that any confusion in the process was a consequence of language issues, as Mr. Ho is not a native English speaker. The Employer notes that it provided Mr. Ho with three grief-counseling sessions at the instigation of Mr. Bridges, and that it allowed Mr. Ho to use vacation and sick leave during his absence between the accident and his discharge. With respect to the absence of a formal, written notice of disciplinary suspension, the Employer contends that it delayed such action until the Labor and Industries investigation was concluded. It further maintains that Mr. Rorvik thought he had adequately informed Mr. Ho of his status when he informed Mr. Bridges and Mr. Son that Mr. Ho was ineligible to work until the Labor and Industries investigation was concluded. The Employer maintains that sensitivity to Mr. Ho’s distress over the accident and to his limited English language skills guided its decisions in the interim before his termination.
With regards to the afore-mentioned contentions, the Employer asks that its decision to discharge Mr. Ho be upheld.
The Applicable Standard is Just Cause.
Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence: that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness. Described in very general terms, the applicable standard is one of reasonableness:
…whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.)
As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is in fact guilty of misconduct. An employer’s good faith but mistaken belief that misconduct occurred will not suffice to sustain disciplinary action. If misconduct is proven, then another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record. It is by now axiomatic that the burden of proof on both issues resides with the employer.
The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, which definition incorporates seven tests as follows:
1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4. Was the company’s investigation conducted fairly and objectively?
5. At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?
If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.
The Applicable Burden of Proof is Clear and Convincing Evidence.
In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination. As the leading treatise in the area has noted:
Discharge is recognized to be the extreme industrial penalty since the employee's job, seniority and other contractual benefits, and reputation are at stake. Because of the seriousness of the penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires "just cause" for discharge.
In this context, it is appropriate for an arbitrator to demand clear and convincing evidence. As Arbitrator Richman explained:
The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment.
Only if misconduct in the instance that led to the termination is proven can an arbitrator go on to address the question of appropriateness of disciplinary action.
Definitions of Negligence.
The Employer contends that Mr. Ho’s termination was justified by his negligence, categorizing his behavior as “wanton and grossly negligent.” Washington case law is clear as to the definitions and elements of both “negligence” and “gross negligence.” A definition of gross negligence found in Washington Pattern Jury Instruction 10.07, characterizes it as
…the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care but care substantially less than ordinary care.
It should be noted that the term "gross negligence," although found in many statutes, has not been statutorily defined. For example, see RCW 4.24.264, 4.24.268, and 7.70.090. The instruction is based upon the meaning of gross negligence as it was developed under the former host guest statute, RCW 46.08.080, which was repealed in 1974. See Nist v. Tudor, 67 Wn.2d 322, 407 P.2d 798 (1965) and Note, 41 Wash.L.Rev. 591 (1966).
With the proviso that Washington Pattern Instruction Chapter 60 should be consulted when a duty is established by statute, ordinance, or administrative rule, Washington Pattern Instruction 10.01 defines Negligence -- Adult as follows:
Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.
To further clarify the definition, Washington Pattern Instruction 10.02 describes “Ordinary Care -- Adult” as “the care a reasonably careful person would exercise under the same or similar circumstances.”
Has the Just Cause Standard Been Met?
Applying the first and second of Arbitrator Daugherty’s tests for the existence of just cause involves determining the following: whether the Employer provided employee Ho with forewarning of the possible and/or probable consequences of his conduct; whether such conduct is determined to have risen to the level of some degree of negligence; and whether the Employer’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the Employer’s business and the employee’s performance. I find that the Employer has satisfied these requirements for just cause. Concerning forewarning of consequences, it could reasonably be said that all of Rabanco’s employees understand that there could be consequences for them in the event that they did not perform their duties in a safe manner. This awareness is due to the fact that Rabanco has been exemplary it providing its employees with safety education and safety guidelines. Mr. Ho was clearly cognizant of the expectations the Employer had for him with respect to safely operating machinery. In fact, Mr. Ho had on several previous occasions been written up for his failure to do so.
It is in addressing the third of the seven elements of just cause (whether the Employer, before disciplining Mr. Ho, made an effort to discover whether he did in fact violate or disobey a rule or order of management), that I have difficulty in finding that the Employer has met its burden of proof. The Employer must provide at least a preponderance of evidence that Mr. Ho was negligent in order to support the Employer’s finding of just cause. Along these lines, the Union argues that the Employer did not establish just cause because it did not conduct any independent investigation into whether Mr. Ho had any fault in the accident. Rather, the Union points out, the Employer relied on the conclusions of the Washington State Labor and Industries investigation, an investigation the Employer itself argued was not conducted to determine fault. I find this argument to have some limited merit given that the Employer did not conduct an in depth investigation of its own.
Turning to the sixth and seventh elements of just cause, (whether the Employer’s application of rules, orders, and penalties was nondiscriminatory; and the question of whether there was a reasonable relationship between the degree of discipline imposed on Mr. Ho to both the seriousness of the proven offense and to Mr. Ho’s employment record) I also find that the Employer has not met its burden of proof. The critical word here is “proven.” It is at this point that the definition of negligence becomes germane, inasmuch as the Employer is contending that Mr. Ho must be proven to have been negligent. However, the mere fact that Mr. Roemer died, horrible as it is, does not mean that either of the parties, or for that matter Rabanco itself, was negligent. People are killed all of the time without there having been negligence; sometimes accidents are just that--“accidents.”
Was Negligence Proven?
I concur with the Employer that negligence, if proven, is sufficient grounds for termination of employment in this work setting. I disagree with the Union that because the Agreement does not specifically provide for termination without notice for gross negligence, dismissal of Mr. Ho on such grounds would be unacceptable. One must account for the fact that the recycling center is an incredibly dangerous place, requiring strict adherence to safety standards. Had the Employer proven by clear and convincing evidence that Mr. Ho was grossly negligent, I would consider the just cause standard to have been met and the termination could be upheld: gross negligence can constitute just cause for termination where the life and safety of fellow employees or the public is contingent on the care exercised by an employee. Even if a lesser degree of negligence or an absence of ordinary care had been proven, the possibility of termination as a reasonable level of discipline could be entertained.
The Employer in its brief points out that Mr. Ho was provided with safety literature that proscribed he “look in the direction of travel,” possibly faulting Mr. Ho for looking over his right shoulder rather than his left. The loader is not equipped with a wide-angle rearview mirror, and it would have been a physical impossibility for Mr. Ho to look over both shoulders at the same time. The Employer provides a number of speculations as to what may or may not have happened, but speculations are not proof.
The Employer notes that there is no evidence that Mr. Roemer failed to exercise due care, and I concur, with the proviso that there is also no evidence to the contrary. I consider that the same statement can be made with regard to Mr. Ho’s culpability or lack thereof. The Employer also contends that Rabanco itself did not contribute to this accident, citing the company’s dedication to safety. It can be argued that the Employer did all it could--as I believe it did--but it is equally possible to argue that Mr. Ho did all he could, given the bizarre circumstances involved in this accident.
The Union argues that defective machinery, namely the front loader reverse alarm, was a contributing factor to the accident. It is difficult to understand why that alarm, if functioning properly, was not heard by Mr. Roemer. Certainly it was reasonable for Mr. Ho to put some degree of reliance on the alarm to warn parties that the loader was in their immediate vicinity. It is also reasonable to assume that Mr. Roemer would have put some degree of reliance on being alerted to the front loader’s location by the alarm. A Labor and Industries citation did conclude the alarm had not been functional and audible at the time of the incident. However, that citation is being appealed by the Employer because there was no one else in the immediate vicinity at the time of the accident who could attest to the presence or absence of the sound of the alarm, and Mr. Ho has never testified that the alarm was not functioning properly.
Both parties allude to the Employer’s requirement that anyone on the floor make eye contact with the machinery operator before venturing into an area where machinery is in operation. The Employer argues “a preponderance of the evidence suggests that Roemer was attempting to catch the Grievant’s attention at the time of impact.” The Union contends that Mr. Roemer had not signaled to Mr. Ho that he was leaving his work area, since had he successfully done so, Mr. Ho would have seen him and thus been able to avoid running over him. There is no evidence, much less a preponderance of the evidence, to uphold the argument that Mr. Roemer was attempting to signal Mr. Ho at the time he was struck. One could assume that if Mr. Roemer had seen a twenty-ton loader coming at him he would have gotten out of the way rather than trying to signal Mr. Ho.
Any number of scenarios for this accident can be, and have been, proposed, but the blunt truth is that the only indisputable and known fact is that Mr. Roemer died as a result of being run over by the front loader driven by Mr. Ho. Further, all parties involved are in agreement that Mr. Ho did not intentionally run over Mr. Roemer.
What did happen on September 24, 2002?
As I write this decision I am completely unsure as to what bizarre set of circumstances that led to the death of Jim Roemer. What I feel that I do know is (1) that Mr. Ho began backing his loader from the sort line, (2) that at the time Mr. Ho began backing he would not have been able to see his entire route due to piled refuse, and (3) that Mr. Roemer had failed to make eye contact (per the Employer’s rule) with Mr. Ho prior to proceeding into the bay. It is clear that at the time of the accident, Mr. Ho would have been proceeding south or southwest in order to exit the bay. One of the problematic issues in this case is that the photos of the accident site show that Mr. Roemer’s toter appeared to be full at the time of the accident. The fact that Mr. Roemer had not yet dumped his materials would lead a reasonable person to conclude that he was proceeding west or northwest at the time of the accident so that he could dump his materials. How could this accident have possibly happened? How could an individual proceeding west have been struck by a loader proceeding south, by the trailing wheel on the west side of the loader? While I understand that the loader was articulated and could swing its trailing end wide in order to turn, the back end of the loader still must have passed within feet of Mr. Roemer prior to his being struck by the front end. Why didn’t he get out of the way?
While there was no evidence of an accident reconstruction being done, even as a layman I am troubled by L&I’s conclusion that the front wheel of the loader ran over Mr. Roemer’s chest. How could this have happened? If Mr. Roemer was walking (no matter which direction), wouldn’t the loader’s wheel have struck him at the waste and crushed his legs or entire body? How could he have been struck so that the loader’s tire ran over only his chest? If L&I did do a through investigation, evidence of such investigation was not presented at the hearing.
One fact is clear is that as Mr. Ho wheeled around the pile of refuse at the north end of bays 10 and 11, he could not look over both of his shoulders simultaneously. At some point Mr. Ho had to rely on the Employer’s reasonable rule requiring “eye contact” with fellow employees, as well as his on back-up alarm. How could Mr. Roemer not have heard the alarm--within a few feet of him--or the roar of the loaders engine and gotten out of the way?
In this case it is muddled as to whether the evidenced indicates that anyone was negligent in the death of James Roemer. Again, negligence is:
the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.
While the employer produced substantial evidence that Vinh Ho was negligent, it has not shown by a preponderance of the evidence that he was. The Union has made arguments that both Rabanco and James Roemer were negligent. They might have been, but a preponderate of the evidence does not support a finding that either violated their duty of care.
I do feel there is merit in the Union’s argument that the Employer let the severe and tragic outcome of the accident dictate its decision to terminate Mr. Ho. I take note of the fact that this is the only occasion wherein Rabanco has terminated an employee on the basis of a single accident. While the employer’s decision was both logical and reasonable, they have the burden of proof to prove “just cause.” Mr. Ho is already burdened with the knowledge that he was the instrument of his co-worker’s death; however, neither this burden nor the death of Mr. Roemer alone constitutes evidence of Mr. Ho’s carelessness or negligence.
The burden is on the Employer to show by clear and convincing evidence that just cause existed to terminate the Grievant, Vinh Ho. The Employer has not met its burden, thus the decision to terminate Vinh Ho’s employment is reversed. While a remedy of back-pay in this situation is harsh given the closeness of this case and the employers clear attempt to be just, arbitral precedent requires it.
The grievance is sustained. The Employer will offer Grievant Vinh Ho reinstatement to the position he held prior to his discharge. The Employer will reimburse Grievant Vinh Ho for all wages and benefits he would have been entitled to had he not been discharged, including vacation and sick leave used after September 24, 2002, less any interim earnings (including unemployment insurance). The Union’s request for interest is denied. All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in Section 8.06 of the collective bargaining agreement.
 Exhibit J-1.
 Exhibit E-1(a).
 Exhibit E-2(a).
 Exhibit E-5.
 Exhibit J-4.
 Exhibit J-2.
 Page 29, opinion unpublished.
 Union’s Post-Hearing Brief quoting United Parcel Service.
 Employer’s Post-Hearing Brief.
 Colorado-Ute Electric Association, Inc., 86 LA 536 (Thomas L. Watkins 1985).
 Exhibits E-12, E-14, E-16, E-17.
 Exhibit E-18.
 Exhibits E-6(a), E-6(b), E-6(c), E-7(a), E-7(b).
 RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).
 Enterprise Wire Co., 46 LA 359, 363-4 (1966).
 Enterprise Wire Co., 46 LA 359, 362 (1966).
 Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).
 General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979). See also: Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same). The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty. Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).
 Definition derived from System Tank Lines v. Dixon, 47 Wn.2d 147, 286 P.2d 704 (1955) and the cases cited therein.
 While the employer would be required to show clear and convincing evidence to support the termination, a lesser penalty could be imposed if the employer could show by a preponderance of the evidence that Mr. Ho was negligent.
 Employer’s Post-Hearing Brief, p. 11.
 I have concluded that it is more likely than not, that had Mr. Roemer made eye contact with Mr. Ho, this tragedy would not have happened. Most likely, Mr. Ho was at the sort line at the time Mr. Roemer proceeded into the bay.
 Exhibit E-4(a).
 Definition derived from System Tank Lines v. Dixon, 47 Wn.2d 147, 286 P.2d 704 (1955) and the cases cited therein.
 Although the employer has failed to show that Mr. Ho was negligent, it should be noted that had the burden of proof been reversed, Mr. Ho might have been unable to show that he was “not negligent.”
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