28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Lewis County Public Transportation Benefit Area and Amalgamated Transit Union
Date: October 6, 2004
Arbitrator: David Gaba
Citation: 2004 NAC 144

Public Employment Relations Commission

 

In the Matter of the Arbitration Between 

LEWIS COUNTY PUBLIC TRANSPORTATION BENEFIT AREA (TWIN TRANSIT), 

                                                   Employer,

            v. 

AMALGAMATED TRANSIT UNION, LOCAL 1384, AFL-CIO, 

                                                        Union. 

Grievance Re. Suspension of David Strickler.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

 

 

Arbitrator’s Decision & Award

PERC No. 18060-P-03-622

I.  INTRODUCTION

            This arbitration arises pursuant to a collective bargaining agreement (hereinafter the AGREEMENT) between the AMALGAMATED TRANSIT UNION, LOCAL 1384, AFL-CIO, (hereinafter the UNION), on behalf of David Strickler, and LEWIS COUNTY PUBLIC TRANSPORTATION BENEFIT AREA  (hereinafter TWIN TRANSIT or 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 July 20, 2004 in Tumwater, 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 on September 15, 2004.  The hearing was closed upon receipt of the Employer’s brief on September 18, 2004.


APPEARANCES:

On behalf of the Union:

Martin Garfinkel
Schroeter Goldmark & Bender
500 Central Building
810 3rd Avenue
Seattle,  WA   98104

On behalf of the Employer:

Brian Baker
Attorney at Law
Box 12929
Olympia,  WA   98508

II.  ISSUES

            The parties could not agree on the issue. 

The Union proposed the following statement of the issue: Was David Strickler suspended for cause?  If not, what is an appropriate remedy?

            The Employer proposed the following statement of the issue: Did David Strickler commit a violation of a work rule which warranted the imposition of a one-day suspension without pay?

            The arbitrator accepts the Employer’s Statement of the issue.

III.  CONTRACT PROVISIONS

The Collective Bargaining Agreement contains the following provisions:

ARTICLE 7. EXISTING COMPANY RULES

It is agreed that all existing rules and regulations relating to the operation and conduct of the Employer's business not in conflict with the provisions of this Agreement shall remain in effect until superseded or changed by subsequently adopted rules and regulations not in conflict with this Agreement. The Employer agrees that it will notify the Union of any rule or regulation change or adoption prior to its effective date.

ARTICLE 8. DISCIPLINE AND DISMISSAL

   1. An employee who has yet to complete his or her probationary period may be suspended or dismissed without stated cause, and any such suspension or dismissal shall not be subject to the grievance provisions of this Agreement.

2. An employee who has completed his/her probationary period may be suspended without pay or dismissed by the Employer for cause. Suspensions without pay or dismissal shall be the only disciplinary actions subject to the grievance provisions of this Agreement.        

3. Written reprimands are not subject to the grievance provisions of this Agreement, however, an employee shall be given the opportunity to sign a written reprimand and attach a response prior to the reprimand's insertion into the employee's personnel file. Any written response must be a supplied to the Transit Manager not later than five (5) calendar days after the employee received the written reprimand. Written reprimands shall be removed from the employee's personal file not later than eighteen (18) months from the date upon which the reprimands were written and inserted.

ARTICLE 9. GRIEVANCE PROCEDURE

1.  Purpose.

The purpose of this grievance procedure is to provide a procedural means for resolution of disagreement arising from interpretation, application and alleged violation of the terms and conditions of this Agreement, including an employee's challenge to a grievable disciplinary action.

2. Processing Parameters.

a. The employee and/or the Union may elect to use this grievance procedure whenever the employee and/or the Union believes a misapplication or misinterpretation of the Agreement has aggrieved them or when it appears that grievable disciplinary action has been initiated without cause.

b. The written grievance must be filed with the Transit Manager within fourteen (14) calendar days of the occurrence of the action or inaction complained of. Failure to file within said time lines shall render the grievance moot and incapable of redress. If the Employer fails to meet or answer the grievance in accordance with the time limits specified, without a waiver, the grievance shall immediately advance to the next step in the grievance process.

Upon mutual written agreement, the parties may suspend or extend the time deadlines for any or all particular steps of this grievance procedure.

The following are the “Driver Rules” contained in the Driver’s Manual:

CHAPTER II

DRIVER RULES

Information: Employees shall be informed on all matters pertaining to bus transportation that will be of assistance in answering inquires and directing passengers. Information must not be given, however, when there is a doubt as to its correctness. In all such cases the inquiring should be advised where correct information can be obtained. All buses will carry extra copies of the schedules for distribution.

Courtesy: The public's opinion of the Lewis Public Transportation Area system is formed by its impression of the efforts and abilities of our drivers and other employees. Drivers will address passengers as "sir" or "maam." In the event of a dispute with passengers, they shall be directed to communicate directly with the Manager. Employees shall at all times treat passengers with courtesy, avoid arguments, and exercise forbearance and control.

Solicitors and Beggars: Solicitors and beggars will not be permitted to solicit from passengers on transit vehicles. Such persons, if found to be at or near bus stops, shall be reported to the local police. Political or religious materials will not be handed out or petitions presented for signature aboard the bus.      .

Lost, Articles: Any articles left on the bus will be turned over to the office together with a completed "Lost and Found" form.

Employee’s Suggestions and Complaints: Employees having a complaint or suggestion are urged to discuss the matter with the Manager. Suggestion box and forms can be found in the lunch room.

Disobedience: Refusal to obey instructions or orders, discourteous behavior toward a superior, violation of rules, or negligence of duty is cause for discipline or dismissal.

Loitering: When off-duty, employees will not loiter on Lewis Public Transportation Benefit Area premises except in places provided for that purpose.

Late for Duty: Reporting late for duty will be grounds for discipline.

Relief From Duty: Relief from duty other than regular relief, or because of illness, will be given at the direction of the Manager. Requests for relief except for illness will be requested in writing by noon the day before the requested time off and by noon Friday for Saturday, Sunday, and Monday.

Arrests or Citations:

Employees arrested or given a citation for violation of the law while on duty shall immediately report the fact and the cause thereof to the Manager.

Employees arrested or given a citation for violation of the law while off duty will report the same to the Manager within 30 days of the conviction.

Leave of Absence:  Requests for leaves of absence must be in writing to the Manager. If granted, the employee will be notified in writing of the effective date and duration of the leave. Employees may not enter other employment during their leave of absence unless specifically authorized to do so.

Failure to Report for Duty: Failure to report for duty without notifying and securing the consent of the Manager shall be cause for dismissal.

Responsibility far Damages: Employees will be held responsible for damages to Lewis Public Transportation Benefit Area property caused by negligence or disobedience of rules.

IV.  FACTS

            Twin Transit is a rural transit authority, which employs less than 30 employees and serves the cities of Centralia and Chehalis, Washington.  Patty Alvord served as the General Manager in charge of operations and human resources from 1994 until early 2004.  The grievant, David Strickler, has been employed as a part time-driver[1] since July 1997.  He has been a shop steward and executive board member for the Union since 1999. 

The Employer has a set of rules that it provides all of its drivers. One of the “Driver’s Rules,” at Chapter II, Section 10.1, states that any employee “given a citation for violation of law while on duty shall immediately report the fact and cause thereof to the Manager.”[2]  Mr. Strickler was unaware of this “immediate report” rule and had no recollection of being trained on the rule since becoming employed by Twin Transit.  The grievant was aware that he had to report traffic infractions, but was unaware of the urgency required by the Employer in doing so. Mr. Strickler had previously acknowledged, in writing, actual physical receipt of the Drivers’ Manual that contained the rule.[3]

Prior to September 18, 2003, Mr. Strickler had never received a traffic ticket as a Twin Transit driver.  Ms. Alvord testified that she was not aware of any prior controversy concerning the “immediate notification” requirement, nor was there any testimony regarding previous citations given drivers that might establish a past practice.

On Thursday, September 18, 2003, Mr. Strickler, while on duty driving a Twin Transit bus, was issued a traffic citation by a Centralia police officer.  The citation was for failing to stop at a stop sign.[4] 

            After receiving the citation Mr. Strickler continued to work until the early afternoon. When he went on break, Mr. Strickler went to find Ms. Alvord to report the citation.    After entering the headquarters, Mr. Strickler spoke with Cathy Whitney, the operations assistant.  He asked for Ms. Alvord and was told that she was gone for the day.  He did not tell Ms. Whitney about citation. Mr. Strickler did not work on Friday, September 19th or Saturday, September 20th.  He did work on Sunday, September 21st, but Ms. Alvord does not work on Sundays.  The next day that both Mr. Strickler and Ms. Alvord were on duty was Monday, September 22nd.  On Monday, September 22nd Mr. Strickler brought the citation to Ms. Alvord and told her about the incident.  He did this at 10:45 am several hours prior to the beginning of his shift and approximately 96 hours after his receipt of the citation.  Ms. Alvord believes that Mr. Strickler was aware of the “immediate report” rule and willfully chose to ignore it.

            Mr. Strickler was given a one-day suspension, the Union filed a grievance, and David Gaba was chosen as Arbitrator.  The arbitration hearing was held on July 20, 2004, in Tumwater, Washington.

V.  POSITION OF THE UNION

The Union argues that Mr. Strickler’s conduct caused absolutely no harm to the Agency, to customers, or to fellow employees and that his conduct, at worst an unintentional violation of the “immediate report” rule that could not justify the severity of an one-day suspension without pay, especially for a 7-year employee with an excellent past record. 

The Union further notes that at the time of the suspension, the Employer’s position was that Mr. Strickler “knowingly” violated the immediate report rule and that arbitral due process requires that the charges against an employee must be based exclusively on the original reasons for discipline. 

VI.  POSITION OF THE EMPLOYER

            The Employer argues that Mr. Strickler had knowledge of the procedure and the potential consequences for his willful disobedience,[5] and that the Manual (in paragraph 6), expressly informed Mr. Strickler that any rule violation that occurred would constitute cause for discipline.  The Employer further notes that past efforts to issue verbal reprimands to Mr. Strickler “for the purpose of changing conduct to result in compliance with work rules was not effective.” 

The Employer also points out that Mr. Strickler chose not to utilize his Employer-supplied cell phone which he had with him during his Thursday workday, despite the fact that he had periodic breaks where he could step away from the bus to make a phone call, and that Mr. Strickler chose not to report the citation on the day of receipt, Thursday, despite the fact that he was on duty and was physically present at the Transit office during the course of that day.  Further the Employer directs the Arbitrator’s attention to the facts that Mr. Strickler never filed a written Incident Report even though he had used such reports to report other matters in the past and that David Strickler knew, or should have known, that traffic law obedience was highly relevant and important to the Employer.

VII.  DECISION

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” or “for 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.)[6]

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, 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 to contain seven elements or “tests:”

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?[7]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[8]

Has the Just Cause Standard Been Met?

Turning to the first and second of Arbitrator Daugherty’s tests for the existence of just cause, namely whether the Employer provided Mr. Strickler with forewarning of the possible and/or probable consequences of his conduct, 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 performance that the company might properly expect of the employee, I find that the Employer has clearly satisfied these requirements for just cause.  Mr. Strickler had been given a copy of the Employer’s manual, which was kept at his work-site (his bus), and contained rules reasonably related to his employment.

With reference to the third of the seven elements of just cause (whether the Employer, before disciplining Mr. Strickler, made an effort to discover whether he did in fact violate or disobey a rule or order of management), I find that the Employer did not establish just cause.  The third question in the seven-part test established in Enterprise Wire contains a note indicating that “the company’s investigation should include an inquiry into possible justification for the employee’s alleged rule violation.”[9]  In the instant case the Employer contends that Mr. Strickler willfully chose to disregard his Employer’s reasonable rule and went so far as to state in his Letter of Suspension that he “knowingly failed to immediately report the on-duty traffic violation.”[10]  In many ways this decision is based on one finding of fact, specifically, the employer failed to show by a preponderance of the evidence that Mr. Strickler was aware of the rule in question and willfully chose not to follow it.  If in fact Mr. Strickler had simply chosen not to follow the rule to annoy Ms. Alford, (as she speculated at the hearing) then a suspension far in excess of one day would clearly be warranted.  Likewise, a finding that Mr. Strickler lied regarding his attempt to contact Ms. Alford on September 18, 2003, would also support a suspension in excess of one day. 

In many ways the key factual finding in this case concerns whether Mr. Strickler attempted to contact Ms. Alvord on the same day he received the citation.  While the employer disputes that he tried to contact Ms. Alvord on September 18th, it fails to rebut Mr. Strickler’s testimony with competent evidence.  The un-sworn hearsay memo from Ms. Whitney[11] shows only that she does “not remember speaking with Dave Strickler on that date,” and carries little evidentiary weight since it was written ten days after the incident and there was no opportunity to inquire as to her memory at the hearing.  The preponderance of evidence favors a finding that Mr. Strickler attempted to contact Ms. Alford on Friday, September 18.  This fact – his attempt to contact Ms. Alvord – is significant because it shows his willingness to bring unusual matters to Ms. Alvord’s attention and more importantly that he had no intent to defy Ms. Alvord or violate his Employer’s reasonable rules.

For the fourth element of just cause, the fairness and objectivity of the investigation, I find the Employer did meet its burden of proof.  While it may seem contradictory in terms of my rulings on other elements of just cause, I do believe the Employer attempted to be fair and objective in its assessment of the facts of the case.  However, fairness and objectivity in process do not always lead to a fair and objective outcome, and I consider that the Employer did not give sufficient weight to the question of why Mr. Strickler would have chosen to willfully weave a web of lies and deceit around the simple matter of a traffic infraction.  It is true that Mr. Strickler has been disciplined in the past for using questionable judgment, however in the instant case, he is being disciplined for knowingly failing to follow his Employer’s rule.

In the often-quoted Ralph’s Grocery, the arbitrator stated “I must judge the justice of his discharge based on the charges given by management for the discipline and can not consider other prior incidents.”[12]    While Mr. Strickler may have previously done a number of prior inane things at work, that doesn’t affect my finding that this is a case of simple misunderstanding where the grievant simply didn’t know the details of the work rule in question.  This is further supported by the testimony of Ms. Alford that she had to look up the rule in question when informed of the infraction.  Both Ms. Alford and Mr. Strickler were aware that he had to report infractions, but it appears that neither of them was aware of the precise language of the rule and its use of the term “immediately.”

Since I have concluded that Mr. Strickler’s nondisclosure was a question of a genuine misunderstanding rather than dishonesty or willful disobedience on his part, he has been subjected to discipline that is not in keeping with that meted out to other employees in similar circumstances.  Overall, the Employer’s application of rules, predicated on the unfounded assumption of willful dishonesty, does not meet the standard of just cause.

VIII.  CONCLUSION

            The burden is on the Employer to show by a preponderance of the evidence that just cause existed to suspend the Grievant, David Strickler.  Had Mr. Strickler been proven to have made a deliberate false statement or to have willfully failed to follow the employers rule, I would certainly have upheld his suspension.  I find that the Employer has not met its burden of proof, and the decision to suspend David Strickler is not upheld.  While a remedy of back-pay in this situation is harsh given the closeness of this case, it is required by arbitral precedent

IX.  AWARD

The grievance is sustained.  The Employer will rescind Grievant David Strickler’s suspension and reimburse him for his one-day of lost pay.

            All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in their Collective Bargaining Agreement.

                                                                        ___________________________

                                                                        David Gaba, Arbitrator

                                                                        October 6, 2004
                                                                        Seattle, Washington



[1] All of the drivers for Twin Transit are part-time.

[2] Employer Exhibit 2.

[3] Employer Exhibit 3.

[4] Employer Exhibit 1.

[5] Employer Exhibit 10.

[6] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[7] Enterprise Wire Co., 46 LA 359, 363-4 (1966).

[8] Enterprise Wire Co., 46 LA 359, 362 (1966).

[9] Enterprise Wire Co., 46 LA 359, 364 (1966).

[10] Employer Exhibit 4.

[11] Employer Exhibit 13.

[12] Ralph’s Grocery, 101 LA 634 (Ross, 1993).

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

 

Get your 28 day trial now 

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