IN THE MATTER OF THE ARBITRATION BETWEEN
HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996
and
OAHU TRANSIT SERVICES, INC.
 (TERMINATION OF BRUCE CAMPBELL)

INTRODUCTION

            This matter came on to arbitration before the Arbitrator, Michael F. Nauyokas, at a hearing that was held on December 6, 2005, December 7, 2005 and January 27, 2006, pursuant to the Collective Bargaining Agreement (“CBA”).  The Union, HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996 (“Union”) and the Grievant, BRUCE CAMPBELL (“GRIEVANT”), were represented by Sean Kim, Esq.  The Employer, OAHU TRANSIT SERVICES, INC. (“Employer”) was represented by Gregory M. Sato, Esq.  All parties were fully and fairly represented.  The Arbitrator made a full disclosure of his relationships with the attorneys, union representatives and firms and there was no objection. The parties, through their attorneys, stipulated to both substantive and procedural arbitrability of the grievance.  The parties, through their attorneys, stipulated to the admission of certain evidence, and that the CBA was in effect at all relevant times pertinent to this grievance.

ISSUES

            The parties stipulated to two issues:

            1.         Was Grievant suspended pending dismissal for just cause; and

            2.         If not, what should the remedy be?

BACKGROUND

            The Employer, OAHU TRANSIT SERVICES, INC., operates a municipal bus passenger service based in Honolulu, Hawaii.  As a part of its operation the Employer operates a body shop for the repair of its bus fleet, at Pearl City.  The body shop is responsible for the body repair (welding, sheet metal work and painting) for over 525 buses and vehicles.  Since 1990, Grievant  had been employed with Employer, where he worked as a mechanic (“HEM”) in the body shop.   Grievant was one of the 16 employees that Kenneth Caldeira (“Caldeira”) supervised.  Grievant worked under Caldeira’s supervision for approximately 15 years.

            The record indicates Grievant had, in the past, filed grievances concerning certain conduct engaged in by his supervisor, which he believed violated the CBA.  Grievant had apparently also talked with Caldeira's supervisor, Mr. Herb Barboza (“Barboza”), concerning Caldeira's conduct as a supervisor.  Other than the incident that is the subject of this grievance, there is no evidence that Grievant ever directly confronted Caldeira at work or on non-work time.  The evidence shows that the Employer had in place, a policy which prohibited violence in the workplace, and that Grievant had attended such training in February, 2001.  Policy No. 8.5, which is entitled “Disciplinary Code,” which became effective July 22, 1996, includes as a Class III (most severe) offense the following:

            4.3.3    Terroristic threats or resorting to physical intimidation*

            The asterisk has a corresponding notation that “This offense may result in immediate discharge.”

            The Policy also contains the following guidelines for discipline in Class III offenses:

            1^st        10 - 30 days suspension*

            2^nd        Suspension pending dismissal

            *Dismissal may be warranted for 1^st offense for conduct which exhibits extreme examples of misconduct.

            The testimony established that on September 7, 2005, there may have been some sort of physical contact between Grievant and Caldeira during a lunch-hour walk taken by Grievant with Mr. Allen Yago (“Yago”), a co-worker.  The record indicates that it was Grievant’s general practice to take lunch-hour walks for exercise and that he walked at a very brisk pace.   Apparently Grievant and Yago were walking in a "clockwise" direction around the facility, going downhill on Waimano Home Road.  Caldeira was walking in the opposite direction toward them in the middle of the sidewalk, and when their paths were about to intersect, Caldeira moved to his right and into Grievant's path.  Before there was a head-on collision, Caldeira stopped and Grievant made a quick step to his right to move around Caldeira, and proceeded. The testimony established that there was no eye contact, nor were words exchanged between the two.  

            Caldiera testified that Grievant made “Big Body” by stiffening his arms. The testimony at the hearing established the sidewalk at the area where their paths would have intersected was approximately 48 inches wide.  There is some discrepancy between the two protagonists’ accounts as to whether or not there was contact between the two.  Grievant indicated that there was no contact, and Caldeira testified at the hearing that the two brushed each other at approximately chest level.  Yago, who was ahead of Grievant and slightly to the side, testified that he did not see anything.

            Nothing further apparently occurred at the scene of this meeting.  Caldeira testified that he then returned to his office and decided that he had to do something about what he felt was Grievant’s intimidating conduct.  He testified that he then made a list of people he was going to notify and began calling them.  Because Superintendent Herb Barboza and Vice President of Maintenance Richard Hardy (“Hardy”) usually took their lunch break at this time of day, Caldeira testified that he planned on calling Ran Suen (“Suen”), who heads Employer’s personnel department, Ron Kozuma (“Kozuma”), Grievant's union representative, and the Honolulu Police Department.

            Apparently Caldeira was forced to leave a voicemail message for Suen, who was, given the time of day, predictably at lunch.  Caldeira succeeded in contacting Kozuma, to whom he reported his version of the events and that he was going to call the police.  At the hearing  Caldeira admitted that he was going to file a criminal complaint against Grievant even if this was an accident because he wanted it known that he was being "picked on" by Grievant.  At the hearing, Caldeira testified that he told Kozuma that Grievant had only brushed him.  The following day, Caldeira met with Barboza and Hardy who reviewed his written statement and asked Caldeira to describe what happened, to show them where the incident occurred, and to demonstrate what happened.  Caldeira was later interviewed by Suen of the personnel department.

            Hardy and Suen next received statements completed by Grievant and Yago, and also interviewed Grievant.  Following this investigation, the pair recommended to Roger Morton, Employer’s Executive Vice President, that Grievant’s employment be terminated.   Mr. Morton accepted this recommendation, Grievant was terminated, and this arbitration ensued.  There is no evidence before the Arbitrator that Grievant was ever prosecuted by the authorities for this alleged act of intimidation.

                       

POSITIONS OF THE PARTIES

            UNION’S POSITION

            The Union takes the positions that:

            First, the Union argues that Employer's investigation was not fair and that it was not thorough.  It supports this argument with the argument that it took only a simple demonstration with Caldeira at the hearing, where questions were asked by an interviewer, to get to the truth and establish that factually, Grievant had moved to his right to avoid contact.   The Union also notes that Caldeira’s testimony at the hearing made it clear that he still doesn't know what actually happened on September 7, 2005.  The Union also posits that Grievant was terminated by Employer for his exercise of his contract rights, due to the previous complaints he had filed regarding various matters, that the use of this incident was just a pretext for dismissal, and the real cause was an anti-Union animus by the Employer.

            Second, the Union argues that there was no misconduct, because Grievant made an effort to avoid contact with Caldeira.  The Union notes that although the evidence is conflicting as to whether there was or was not contact, the evidence is clear that Grievant tried to avoid contact by moving to his right.  Therefore, the Union argues, Employer's justification for terminating Grievant, e.g. that he "ran" into Caldeira, is an erroneous conclusion.

            Third, the Union argues that the evidence was clear that even if there was contact, it occurred because neither Caldeira nor Grievant was willing to yield the sidewalk.  According to Grievant and Caldeira, Caldeira came to a stop approximately five (5) feet away from Grievant and that because of this, Grievant had less than one (1) second to decide what to do.  The Union argues that because Grievant moved to his right, if contact occurred, then it occurred because both men were equally at fault.   The Union argues that because Caldeira was not disciplined as a result of this event, and since both men were equally at fault, Grievant should not have been disciplined either.

             The Union requests that the Arbitrator provide the following relief:

            (A)       that the discipline against Grievant be revoked;

            (B)       that Grievant's work record should be cleared of this discipline in its entirety;

            (C)       that Grievant should be awarded full back pay, including the accrual of seniority and all benefits during the period of time he was improperly suspended;

            (D)       that Employer be required to pay any and all out-of-pocket medical expenses incurred by Grievant, including any insurance premiums for medical coverage, until his family medical coverage is fully restored with Employer; and

            (E)       that Employer be directed not to engage in similar conduct against Grievant due to his filing of grievances or where the Employer uses Company policy as supporting grounds for anti-Union activity.

            EMPLOYER’S POSITION

            The Employer argues that it has satisfied the requirements for a just-cause dismissal in Grievant’s dismissal and takes the following positions:

            First, that Grievant was forewarned of the consequences of his actions because on February 6, 2000, he attended Employer’s Workplace Violence training and therefore must have understood that "physical intimidation" was prohibited and that it could lead to dismissal. Further, Grievant did not offer any contrary testimony.

            Second, the Employer argues that its rules were reasonably related to business efficiency and the performance the Employer might expect from an employee, because it is beyond dispute that rules preventing violence in the workplace are related to business efficiency.   Further, the Employer argues that such a rule is especially important in an industrial setting such as this where there are work pits, power tools, sharp instruments and caustic chemicals.   The Employer also notes that rules prohibiting violence in the workplace are per se reasonable.  Because Grievant's actions rendered him culpable for his violation of the rules and policies of the Employer, he was terminated for just cause because he had forewarning of the possible disciplinary consequences of his conduct.

            Third, the Employer argues that an effort was made before the discipline was imposed to determine whether the employee was guilty as charged, because a review of the record demonstrates that it conducted a through investigation by obtaining written statements from Caldeira, Grievant, and Yago, and interviewed each of them.  The Employer also notes that Hardy went to the scene of the incident with Caldeira to obtain a demonstration of what occurred.

             Further, the Employer argues that it conducted the investigation fairly and objectively; that even if it were to be assumed that Hardy's investigation was tainted, a parallel investigation was conducted by Suen, who reviewed the same information and reached the same conclusion, e.g. that Grievant's employment should be terminated. Thus, there is no evidence that the process or result was unfair. 

            The Employer also takes the position that substantial evidence of the employee’s guilt was obtained, because the Employer concluded that Caldeira's report that Grievant had made physical contact with him was more credible than Grievant’s denial of this incident because of the following established facts:  Caldeira reported the incident immediately after it occurred; Caldeira reported it to those individuals he thought should know- the personnel department, the Union, and the police; Caldeira's report consistently described the incident over time; and, Caldeira submitted his statement before he knew what report, if any, Yago would make.

            The Employer also argues that the rule was applied fairly and without discrimination.  The Employer argues that despite the two cases of discipline cited to by the Union:  one wherein one employee poked another employee on her side and when the other employee complained, Employer investigated, and suspended the employee for two days because he readily admitted his actions and apologized; and, the second case, wherein an Employee readily admitted that he threw a basketball and hit another employee in the chest and then apologized for his actions at the investigation phase, and was suspended for thirty (30) days; don’t apply here.  The Employer argues that the critical factual difference in these cases, when compared to Grievant's situation, is that the employees in the other cases acknowledged their mistakes.  The Employer argues that Grievant “dug his own grave” by claiming nothing occurred.

            Finally, the Employer concludes its arguments by noting that the degree of discipline was reasonably related to the seriousness of the employee's offense and the employee’s past record.  The Employer argues that Grievant must be held responsible for his actions and since the Arbitrator reviews and not redetermines discipline, he should not substitute his own judgment for that of the Employer; that there are no mitigating factors present; and, that the termination must be upheld.  

            The Employer also argues that Grievant was too arrogant to admit he may have made a mistake, and because of this fault, the Employer could not consider any mitigating circumstances, which it had done in the other cases cited by the Union.  The Employer argues that because Grievant was unwilling to take responsibility for his actions, that Employer had little choice, because it cannot jeopardize the safety of its supervisors and cannot afford to wait until someone is injured before using termination.

ARBITRATOR’S ANALYSIS

Issue 1:            Was Bruce Campbell suspended pending dismissal for just cause?

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s discipline by the Employer. “Just Cause,” as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

“Just Cause. The standard by which it is determined that the Employer has sufficient reason to remove an individual from employment. Basically synonymous with “reasonable,” “good,” or “proper cause.” Perhaps the most often-quoted statement of just cause criteria used by Arbitrators is in the form of a series of questions provided by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).”

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

            In order to satisfy this standard, the Employer must meet the following tests required to show just cause for the Grievant’s dismissal:

            1.         The Employee was forewarned of the consequences of his actions.

            2.         The Employer's rules are reasonably related to business efficiency and the performance the Employer might expect from an Employee.

            3.         An effort was made before discipline to determine whether the Employee was guilty as charged.

            4.         The investigation was conducted fairly and objectively.

            5.         Substantial evidence of the Employee's guilt was obtained.

            6.         The rule was applied fairly and without discrimination.

            7.         The degree of discipline was reasonably related to the seriousness of the Employee's offense and the Employee's past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/11/97) (Nauyokas, Arb.); State of Hawaii, (7/27/97) (Nauyokas, Arb.); UFCW Union Local 480, AFL-CIO and Safeway (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000) (Nauyokas, Arb.); SHOPO and City & County of Honolulu (9/20/00) (Nauyokas, Arb.); UPW and Hawaii Health Systems Corp. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb).

This decision will deal with each of these tests in turn:

            1.         Was the Grievant forewarned of the consequences of his actions?

            Grievant did not dispute that he attended Employer’s Workplace Violence training and therefore must have understood that "physical intimidation" was prohibited by the Employer.  

            The first question in the mind of the Arbitrator is whether factually the conduct described in the testimony and evidence adduced at the hearing reached the level of “physical intimidation”; particularly, in a situation where there is such a conflict in the evidence presented for review as to whether there was any physical contact at all, and, if there was actual contact, its nature, force and duration. 

            The second question is whether these rules clearly communicated the consequences of the conduct for which Grievant was allegedly terminated.  The Union raises a valid point by citing to the previous instances where there was definite, intentional and admitted contact, and the situation here, where there is, what on the football field would clearly have been “incidental contact”, and not a foul.  If the admitted, intentional throwing of a basketball into the chest of another employee warrants a 30-day suspension, and the admitted and intentional poking of a fellow employee in the side warrants only a two-day suspension, the Arbitrator is hard pressed to understand how an employee, who accidentally (or even intentionally) brushes his supervisor while passing on the sidewalk, should be aware that he is risking dismissal for workplace violence.

            The Arbitrator must also look to the guidelines of the Employer’s own Disciplinary Code to see if a suspension pending dismissal was warranted under these circumstances.  In the absence of any extreme behavior, the maximum discipline under these guidelines would be a

10-30 day suspension for a first offense.  There was no evidence at the hearing that there had been a prior Class III offense by the Grievant.  There was also no sufficient evidence adduced at the hearing that Grievant’s conduct constituted the “extreme misconduct” which would warrant dismissal for a first offense.

            There was no testimony at the hearing indicating that by any verbal cue or terrorist threat that Grievant intended to “intimidate” his supervisor at the time that he attempted to pass him on the sidewalk.  The testimony and exhibits, in fact, indicate that if in fact there was any contact, both of the parties involved were likely to have been responsible, either by mutual mistake, or mutual hardheadedness.  The Arbitrator therefore finds that the Grievant was not clearly forewarned that the consequence of his actions could be termination.

2.         Were the Employer's rules reasonably related to business efficiency and the performance the Employer might expect from an Employee?

            The Arbitrator notes the citation of the Employer to the previous rulings he has made on the necessity of the active prevention of workplace violence.  The Arbitrator finds that rules aimed at the prevention of workplace violence are resonable per se.  Therefore, the Arbitrator finds that the Employer’s rules were reasonably related to the Employer’s business efficiency and the performance that the Employer could reasonably expect from its employees.

            3.         Was an effort made before discipline to determine whether the Grievant was guilty as charged?

            A review of the record in this matter does show that the Employer, once alerted to the incident by Caldeira, did a two-fold investigation, and conducted interviews of the employees involved to determine what had happened prior to the imposition of discipline.  Grievant was given the opportunity to respond, and denied the charge.  Without going into the issue of whether the investigators reached the correct conclusion, the Arbitrator does find that the Employer made an effort to determine that the Grievant was guilty as charged prior to the imposition of discipline.

            4.         Was the investigation conducted fairly and objectively?

            In reviewing the record of the hearing, the exhibits and the submissions of the parties after the hearing, the Arbitrator determines that the investigation was conducted fairly and objectively.   However, having said this, the Arbitrator must note that the investigators had very little to go on in the way of evidence.

            5.         Was substantial evidence of the Grievant’s guilt obtained?

             Other than Yago, who saw nothing, there is no “tie-breaker” as far as witnesses go.   Additionally, the Arbitrator is struck by the inconsistencies in Caldeira’s testimony as it progressed throughout both the investigation and the arbitration hearing. 

            Particularly troubling to the Arbitrator is the fact that Caldeira testified that he intended to charge Grievant criminally over the incident, even if it was an accident. There is also the evidence that Grievant was vocal in his criticism of Caldeira’s management style and in his exercise of his rights under the CBA.  Caldeira’s description of the contact with Grievant went from a push to a brush in the course of the hearing.  Given the history of the strained relations between Caldiera and Grievant, it appears that some of the evidence of Grievant’s violation of the prohibition against “physical intimidation” is somewhat south of the latitude that would establish substantial evidence of guilt.  The Arbitrator is unable to determine that the evidence of guilt or innocence was substantial.  In the Arbitrator’s view the evidence is a dead heat.

            6.         Was the rule applied fairly and without discrimination?

            The Employer forcefully argues that there was no disparate treatment here as to the discipline imposed on Grievant as opposed to the other disciplined employees who each received suspensions rather than dismissals, due to their acceptance of guilt and their apologies for what were clearly intentional acts.  The Employer’s position is based upon the argument that, because he refused to acknowledge his violation of the Employer’s policy, Grievant has “dug his own grave” by his “arrogance.”

            The Arbitrator wonders whether in order to escape a more severe penalty a person presumed innocent should admit to doing something he or she has not done?  Or, in turn, should a supervisor turn what may have been a miscalculation in trajectory into an intentional confrontation to impose discipline on a critical subordinate?  The Arbitrator thinks neither should be done, and will not place that burden on other similarly placed employees by this decision.

            At best, the evidence in this case shows that two grown men who have had differences of opinion in the past are unable to walk on the same sidewalk without turning it into a workplace power struggle.  The Arbitrator finds that confession, while arguably good for the soul, is not a precondition to satisfaction of the seven tests of just cause. 

            The Arbitrator therefore finds that a brush, even an intentional one, is not greater in severity than a poke in the side or a basketball to the chest and certainly does not rise to the level of “extreme misconduct” which would warrant suspension pending dismissal for a first offense.  Given the difference in penalties, the Arbitrator finds the penalty to be disparate with the conduct complained of and the past history of discipline imposed for greater offenses.

7.         Was the degree of discipline reasonably related to the seriousness of the Employee’s offense and the Employee’s past record?

            In light of the Grievant’s long employment history without any prior serious disciplinary infractions, the degree of discipline in light of the seriousness of the offense, and, the Grievant’s past record, suspension pending dismissal was not a reasonable form of discipline. 

            The Arbitrator is mindful of the Employer’s argument that the Arbitrator reviews and not redetermines discipline, and should not substitute his own judgment for that of the Employer; however, in this particular instance, the record indicates that there are clearly mitigating factors present, and that the Arbitrator cannot therefore uphold the Grievant’s dismissal for this “brush” with management.

            Therefore the Arbitrator finds that there was not “just cause” for the Grievant’s dismissal by the Employer. 

DECISION AND AWARD - ISSUE ONE

            The Grievance is sustained.  The Arbitrator finds that the suspension pending dismissal of Grievant by Employer was not for just cause.  Given the fact that there was a likely, in fact, a probable violation of the Employer’s policy, which arguably warranted at maximum a thirty (30) day suspension, the appropriate remedy is:

            1.         The Grievant will be reinstated to his prior position with the Employer;

            2.         The Grievant will be awarded back pay to the end date of a thirty (30) day suspension period which will begin on the first date of his dismissal;

            3.         The Grievant’s personnel files will have any reference to the dismissal removed and he shall be issued a letter of suspension for a thirty (30) day period of time;

            4.         The Grievant’s dates of employment will reflect a thirty (30) day suspension;

            5.         Employer’s obligation to make any contribution to Grievant’s medical or retirement funds shall be adjusted during the interim from the date of dismissal retroactively to the date of the end of Grievant’s thirty (30) day suspension, and

                         Employer’s obligation to make contributions will not become manifest until the date of this Decision.

            DATED: Honolulu, Hawaii,                                                               .

                                                                                                                                               
                                                                        MICHAEL F. NAUYOKAS
                                                                        Arbitrator           

STATE OF HAWAII                                    )                      
                                                                     )           SS
CITY AND COUNTY OF HONOLULU    )

            On this _____th day of __________ 2006, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

___________________________________
Notary Public, State of Hawaii
My Commission expires: _______________