Transit Services, Inc. and Hawaii Teamsters and Allied Workers, Local 996
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS
STATE OF HAWAII
ARBITRATION DECISION AND AWARD
IN THE MATTER OF THE ARBITRATION BETWEEN
HAWAII TEAMSTERS AND ALLIED WORKERS, LCAOL 996
OAHU TRANSIT SERVICES, INC.
(THE GRIEVANCE OF X______________)
This matter came on to arbitration before the Arbitrator, Michael F. Nauyokas, at a hearing that was held on April 26, 2007, pursuant to the Collective Bargaining Agreement (“CBA”). The Union, HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996 (“Union”) and the Grievant, X______________ (“Grievant”), were represented by Sean Kim, Esq. The Employer, OAHU TRANSIT SERVICES, INC. (“Employer”) was represented by Wesley Fujimoto, Esq. All parties were fully and fairly represented. The Arbitrator made a full disclosure of his relationships with the attorneys and firms that there was no objection. The parties stipulated to both substantive and procedural arbitrability. The parties stipulated to the admission of certain evidence and preserved objections as to the weight to be given to some of the evidence. The parties stipulated through their attorneys that the CBA was in effect at all relevant times pertinent to this grievance. As this is a matter involving just cause for termination, the burden was upon the Employer to show just cause.
The parties stipulated to two issues:
1. Was Grievant suspended pending dismissal for just cause; and
2. If not, what should the remedy be?
The Employer, Oahu Transit Services, Inc. (“Employer”), operates a municipal bus passenger service based in Honolulu, Hawaii. The public relies on the Employer for transportation and federal and state laws subject to the Employer’s business operations to heightened levels of security to ensure the safe and efficient transport of the riding public.
Grievant had been employed with Employer for 16 years. He worked as a Bus Operator for the Employer at the time of his suspension pending termination.
In August 2006, Grievant was driving Route 65, which goes out of Temple Valley on the Windward side of the island of Oahu and continues into Honolulu. On August 22, 2006, the Employer’s customer service center received a complaint of an incident alleging sexual harassment of a 16-year-old female passenger, during which the operator allegedly grabbed hold of the passenger’s face and kissed her “smack on the lips.” The complainant1 stated that a bus operator by the name of “Frank” had sexually harassed his 16-year-old daughter on the previous evening on August 21, 2006, on Route 65, as she was going home from her part-time job in Temple Valley.
1 As the Complaining Witness is a minor, this opinion will not make any references to her or her family that would contain personally identifiable information.
The record demonstrated that some female passengers gave Grievant’s a kiss on the cheek when they boarded the bus. Grievant was familiar with the complaining passenger because she frequently rode his bus over a period of about two years. There is no dispute that the alleged victim was one of those passengers who would give Grievant an “aloha” kiss on the cheek.
The record amply reflects that Grievant received instruction, training, and other communication on various policies including Employer’s zero tolerance policy against sexual harassment, especially sexual harassment of minors. Violation of the policies are classified as a Class III violation under the CBA, and the penalties for such violations include immediate suspension and termination. The record demonstrates that this information had been communicated to the Grievant well prior to the incident.
There was also evidence that the Grievant had previously been counseled for inappropriate behavior following an informal complaint by a female co-worker in 2005 which resulted in a letter being placed in his personnel file.
An investigation was initiated by Mr. Huddy, the Employer’s Assistant Superintendent of Transportation, when he was made aware of the incident on August 22, 2006. Mr. Huddy called Grievant in to discuss the complaint. Grievant admitted that the Complaining Witness was a regular rider and that it was customary for her and other female passengers to kiss him on the cheek as they boarded his bus. Grievant stated he did not ask to be kissed on the cheek but did not want to be disrespectful. Grievant admitted to picking up and transporting the Complaining Witness on the evening and at the time complained of as part of his route, but denied kissing the Complaining Witness on the lips. Mr. Huddy gave Grievant the opportunity to submit a written response to the complaint.
Grievant submitted a written statement on August 23, 2006. In the statement, Grievant denied grabbing the Complaining Witness’s face or kissing her on the lips. He did admit to driving Route 65, and stated that at approximately 8:45 p.m. on August 21, 2006, he made a service stop at Temple Valley Shopping Center where a 16-year-old regular female rider boarded his bus. The Grievant further stated that this passenger boarded the bus, kissed him on the cheek, and then sat on the right front bench seat across him. Grievant’s statement also indicated that he spoke with his passenger and told her that he had seen her walking with her boyfriend on the side of the road. Grievant’s statement indicated that when he asked the passenger why she was walking and did not catch the bus and that she replied that she was spending time with her boyfriend and that she was not supposed to be seeing him because her father had “grounded” her after she had spent the night at her boyfriend’s house. The statement continued that when the passenger departed from the bus she kissed him on the cheek and said “Bye Frank.”
On August 31, 2006, Employer’s Senior Vice President, Mr. Kenneth Hong, met with Mr. Bert Corniel, a private investigator, to discuss the matter. Mr. Corniel met with the Complaining Witness, her father and the father’s live-in girlfriend as part of the Employer’s investigation.
The investigation conducted by Mr. Corniel indicated that the Complaining Witness’s family used the bus exclusively as their only means of transportation. The father, who initiated the complaint against Grievant, was disabled due to some emotional problems and the family had resided in the Windward area of Oahu for four years. The father indicated that he caught the bus that Grievant operated for two years and that he only knew him as “Frank the Bus Driver.” He further indicated that he had no other social contacts with Grievant. The Complaining Witness’s father also told the investigator that he had observed young teenage girls who boarded the bus kissing “Frank the Bus Driver” on the cheek before they were seated, and that he though this was wrong and unprofessional. He also stated that on the day of the incident, his daughter arrived home from work at about 10:00 p.m. and appeared to be upset. The following morning the Complaining Witness’s father related that he received a telephone call from his daughter in which she informed him of the incident of the night before. The father indicated that he called the Employer and lodged his complaint at that point, and likewise initiated a compliant with the Police Department.
The Complaining Witness’s father also informed Mr. Corniel that she had been molested when she was very young and undergone treatment for her reaction to the earlier incident.
Mr. Corniel then interviewed the Complaining Witness, and obtained essentially the same version of the events that Mr. Corniel had previously obtained from her father. The Complaining Witness also stated that she was talking to a friend on her cellular telephone while entering the bus, and put the telephone in her pocket, and then after the incident became upset and told her friend that she’d call her back. The Complaining Witness also indicated that she had told a co-worker about the event the following day, but when Mr. Corniel wanted to interview the co-worker, the Complaining Witness indicated that her co-worker didn’t want to become involved and would only state that she knew that some passengers would kiss Grievant on the cheek upon entering the bus.
The Complaining Witness later positively identified Grievant when Mr. Corniel conducted a photo-line up of seven other identification badge photos of other employees along with the photo of Grievant.
On October 3, 2006, Ms. Christina Manoi, Superintendent of Transportation, Pearl City Division, interviewed Grievant with Mr. Huddy present, advised him of the findings of Mr. Corniel’s investigation, and gave him an additional opportunity to explain the events of the date in question. Grievant offered no further explanation.
The Employer, following this interview, on October 4, 2006, placed Grievant on suspension pending termination from his position as a bus operator for the following offenses:
4.3.1 Sexual harassment including indecent exposure; sexual assault; unwanted touching, patting, or rubbing in a sexual way; abuse of minor children;
4.3.5 Sexual harassment whether or not involving physical contact, threats, intimidation, or misuse of position;
3.3.2 Conduct contrary to morality or common decency or conduct which threatens or impairs the proper performance of duties or which reflects upon the efficiency and good name of employer;
3.3.3 Conduct unbecoming of a The Bus employee including use of profane or obscene language, coercing, or serious altercations with passengers making sexual gestures, or suggesting sex while on duty.
On January 11, 2007, a Job Security Committee meeting was held following the filing of a grievance by the Union. Grievant had the benefit of Union representation at this meeting, which ended in an impasse, but Grievant’s counseling over the prior incident of inappropriate conduct was noted as having given him notice of the Employer’s rules and policies.
There was no witnesses to the alleged conduct other than Grievant and the Complaining Witness.
At the hearing, both the Grievant and the Complaining Witness offered testimony. Grievant, for his part, denied kissing the young woman on the lips or touching her with his hands and testified that the lights on the bus were on at the time. The Complaining Witness testified that the bus’s interior lights were off and the Grievant grabbed her fact with both hands and kissed her on the lips.
SUMMARY OF THE EMPLOYER’S POSITION
The Employer argues that it has satisfied the requirements for a just-cause dismissal in Grievant’s suspension pending dismissal and takes the following positions:
First, the overwhelming weight of the record indicates that Grievant received extensive sexual harassment training and that Grievant had received forewarning or foreknowledge of the possible or probable disciplinary consequences of violating the Employer’s Disciplinary Code by grabbing and holding the face of a female passenger and then kissing her on the lips without invitation. In addition, Grievant, by his stipulation regarding his foreknowledge about the policies and the possible consequences, waived any argument that he was unaware of the policies which he violated, as his counseling in the prior incident made clear that the policy against sexual harassment was zero tolerance that could result in immediate dismissal.
Second, the Employer submits that its policies relating the sexual harassment and the special protection of minor children are reasonably related to the orderly, efficient, and safe operation of the Employer’s business, and the performance that the Employer might reasonably expect of Grievant. The Employer points out that the terms of the policies under which they were generated: 1) provide notice of the disciplinary consequences for specific infractions to both employees and management; 2) ensure that disciplinary penalties will be consistently enforced among employees; and 3) provide for constructive and progressive discipline, except when serious behavior requires immediate action. The Employer observes that notice and consistency of disciplinary consequences serve the purpose of maintaining a fair, objective, and stable work environment. Constructive and progressive discipline permits employees to understand and improve upon their conduct encouraging a more stable work force. The ability of the Employer under the Policy to take immediate action for serious behavior also serves both of these objectives. The Employer argues that stability in the work environment and its work force are reasonably related to the “orderly, efficient, and safe operation” of the Employer’s business.
Third, the Employer argues that before placing Grievant on suspension pending dismissal, the Employer made a significant effort to discover whether Grievant did, in fact, violate or disobey a rule or order of management. In this case, the Employer argues that it retained Mr. Corniel to conduct an independent investigation that consisted of live interviews of at least three live witnesses and a photo lineup. The Employer also notes that it afforded Grievant and the Union multiple opportunities to present evidence and make a case for reinstatement, and invited Grievant to make verbal and written statements in response to the allegations, which he did.
Further, the Employer argues that it conducted the investigation fairly and objectively because it used an outside private investigator in this case, because of the seriousness of the allegations. The record indicates that the Employer endeavored to conduct a fair and objective investigation by hiring Mr. Corniel, who testified that he ensures that he has no potential conflicts of interest before accepting assignments from the Employer; further that he had no interest in the outcome or results of the investigation; and, made a significant effort to discover whether the Grievant did, in fact, violate the Employer’s Code. The Employer argues that the fact that Mr. Corniel did not probe into the Complaining Witness’s relationship with her boyfriend and into her unfortunate experience with having been molested does not render his investigation biased.
The Employer argues that at the investigatory meetings, Grievant was given specific notice of the charges against him and the facts in support of those charges. The Employer notes that the Grievant was given, not only an opportunity to present his own version of the incident, but also to address any specific concerns regarding the evidence gathered during the investigation, prior to being informed of the disciplinary action.
Fourth, the Employer argues that it obtained substantial and compelling evidence or proof that Grievant committed four separate serious Class III offenses, each of which, either separately or considered as a whole, supported termination. The Employer argues that Grievant’s conduct of grabbing/holding the face and kissing the lips of a 16-year-old female passenger was an act of sexual harassment against a minor child, and that the decision to suspend Grievant prior to termination was justified.
Fifth, the Employer argues that the rule was applied fairly and without discrimination. The Employer notes that the Union failed to submit any evidence that there was disparate treatment or any unfair singling out of Grievant for discipline. Employer notes that the past practice of the Employer’s treatment of similar cases taken to arbitration prevents any claim of unfair, unequal, or inequitable treatment in this incident. The Employer submits that it did apply its rules, order, and penalties even-handedly.
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 the Grievant must be held responsible for his actions and that the public policy against sexual harassment mandates termination of Grievant.
The Employer notes that its Disciplinary Code specifically provides that violations of the sections cited in Grievant’s suspension pending termination are Class III offenses, all of which carry a penalty of suspension pending dismissal, and also states that employees are subject to immediate discharge based on the seriousness of the offense. This requires that this Arbitrator determine that the suspension pending dismissal imposed against the Grievant was reasonably related to the seriousness of his proven offense and his service record. The fact that the victim was a minor child constitutes an aggravating factor.
The Employer argues that no discipline short of discharge would allow it to orderly and responsibly operate its business in light of Grievant’s apparent inability or unwillingness to correct his behavior. The Employer concludes that it has met the burden for just cause termination, and that the grievance should be denied.
SUMMARY OF THE UNION’S POSITION
The Union does not dispute that an operator who physically grabbed the face of a passenger to plant a kiss on the lips of the passenger, has committed misconduct. However, the Union takes the position that under the facts of this arbitration and the proof submitted by the Employer, the termination of Grievant was not for just cause because the issue is whether the Employer had substantial evidence of Grievant’s guilt.
The Union argues that the burden of proof is on the Employer, which must prove its case by clear and convincing evidence. The Union strongly disagrees that the Employer has satisfied its burden because there are no other witnesses and this is a “he said/she said” situation making the witness’ credibility everything. The Union argues that Grievant is a credible witness; that his testimony at the arbitration was consistent with his written statement of August 23, 2006; and that his testimony was clear and direct at the arbitration and that the Complaining Witness had no credibility.
The union bases its attack on the Complaining Witness’s credibility with the argument the night at her boyfriend’s house. The Union argues that if the incident occurred and she did not speak to Grievant because of her mental state on the date of the alleged incident, he could not have know that she had been grounded and she had spent the night at her boyfriend’s house. The Union argues that this is personal information that could only come from the Complaining Witness, and gave her a motive to have the Grievant removed from employment in order to keep him from disclosing the fact that he had seen her with her boyfriend after being grounded by her father.
The Union also points to inconsistencies between the Complaining Witness’s testimony at the hearing and her account given to Mr. Corniel during his investigation regarding the following issues:
1. The location of the Complaining Witness’s cellular phone when the alleged incident took place, and whether it would have been crushed against her ear had the Grievant grabbed her face with both hands;
2. The timing of her disclosure to her friend to whom she was speaking on the cellular phone at the time of the incident as to what had just transpired;
3. How the bus could have been dark if passengers had disembarked immediately before the entry onto the bus as she indicated in both her statements to the investigator and at the hearing;
4. The different in accounts as to where the Complaining Witness sat down after the alleged incident;
5. The fact that the Complaining Witness’s testimony regarding what she told a co-worker shifted, first indicating that she had told the co-worker, then that co-worker would not confirm what she had told her because she “didn’t want to get involved.”
The Union argues that since the Complaining Witness’s father told Mr. Corniel that the bus is his exclusive method of transportation, the Complaining Witness knew that at some point in time, Grievant would have an opportunity to speak to her father and might mention that he saw her with her boyfriend together after she was grounded. The Union argues that the Complaining Witnesses’ father’s temper is clear from the record and a 16-year-old girl would do anything to avoid getting on his bad side. The Union submits that it has demonstrated that the Complaining Witness has no credibility and had a motive to lie about the incident to get Grievant in trouble. The Union concludes that there was no substantial evidence of Grievant’s guilt, and therefore just cause did not exist for Grievant’s termination.
The Union requests that the Arbitrator provide the following relief:
That grievant be reinstated, with no loss in pay or benefits, including seniority.
Issue 1; Was Grievant 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, 363-54 (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, 363-65 (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 stipulated that he had been counseled regarding the Employer’s Sexual Harassment policies following a prior informal complaint and that there was a letter regarding the incident in his personnel file. It is clear from the record, that Grievant was on notice of the consequences of the conduct alleged. This is dispositive on the point that the Employer had clearly communicated to the Grievant the consequences of the conduct for which the Grievant was allegedly terminated.
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. There was evidence at the hearing that the Grievant’s alleged conduct constituted a per se violation of the disciplinary code, and that he had been counseled previously regarding alleged inappropriate conduct, prior to his suspension pending dismissal. The Arbitrator therefore finds that the grievant was clearly forewarned of the consequences of his alleged actions.
2. Were the Employer’s rules reasonably related to business efficiency and the performance the Employer might expect from an Employee?
The Arbitrator notes, and the Union concedes, that the Employer’s Rules prohibiting sexual harassment and other behaviors allegedly violated in this incident are reasonable per se. Therefore, the Arbitrator finds that the Employer’s rules were reasonably related to the Employer’s efficiency and the performance that the Employer could reasonably expect from its Employees.
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 the Complaining Witness’s father, did a thorough investigation, and conducted interviews of the employee involved, and hired an experienced private investigator to determine whether the Grievant’s account of the events that led to the imposition of discipline was credible. Grievant was given the opportunity to respond, and gave his won oral and written accounts as to his conduct with respect to the charges. Without going into the issue of whether the investigator reached the correct conclusion, the Arbitrator does not 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, the Grievant was given the opportunity to respond to the charges, and had the benefit of Union Representation at the disciplinary meeting. Mr. Corniel, an outside investigator who was neither a witness nor the prosecutor, fairly conducted the investigation.
5. Was substantial evidence of the Grievant’s guilt obtained?
This portion of the test of Just Cause is apparently the only bone of contention that the Union has with the Employer’s disciplinary action. The Arbitrator is mindful of the Union’s concerns regarding the alleged motivation for the Complaining Witness’s account of the vents that transpired, and her credibility; however, the Arbitrator has one conceptual problem with the Union’s argument. If the Complaining Witness were so concerned about a possible disclosure of her violation of the terms of her grounding, why in the name of reason would she concoct a story that was certain to draw far more attention by her father to both Grievant’s conduct and her own conduct following the grounding by her father than merely saying nothing? In the Arbitrator’s view, this argument doesn’t pass her father’s attention would be drawn precisely to the facts that the Union argues she was attempting the conceal by deceit.
Clearly, in this instance, where it is truly a “he said, she said” situation, there are possible conflicting motivations by both of the protagonists for their conflicting accounts of what happened; however, as a practical matter, the Arbitrator finds that the Grievant had substantially more to lose in this situation that the Complaining Witness had to gain by fabricating her account. Further, the Arbitrator notes that the evidentiary standard that the Employer ahs to satisfy in this instances is only that of “Substantial Evidence” in short, a preponderance. In determining whether this criteria is met, the Employer has rightly pointed out that an arbitrator must be guided by the principle that he or she will not substitute his or her judgment and discretion where management has reasonable basis for its actions and has followed fair procedures. Worthington Corp., 24 Lab. Arb. (BNA) 1, -67 (1955), quoted in, Elkouri & Elkouri, How Arbitration Works, at 653 (BNA 1993).
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; and, argues that there can be no other result given the Employer’s “Zero Tolerance” approach to violation of this kind. It clearly appears on the basis of prior arbitral decisions involving this Employer and these rules that, if the Employer has obtained substantial evidence of a violation, it would be discrimination to apply a lesser penalty against this employee than the Employer has imposed against the other employees previously dismissed for lesser violations of the same rules and policies. The Arbitrator therefore finds no discrimination.
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 employment history and prior infraction, and the Employer’s adherence to progressive discipline and counseling for the prior alleged conduct of the Grievant, the degree of discipline in light of the seriousness of the offense was a reasonable form of discipline.
The Arbitrator is mindful of the Union’s argument that there are some inconsistencies in the testimony at the hearing and as to the motivations of the Complaining Witness; however, looking at the record as a whole, the Arbitrator is unable to come to the conclusion that the Employer’s determination was erroneous. Therefore, the Arbitrator finds that there was “just cause” for the Grievant’s suspension pending dismissal by the Employer.
DECISION AND AWARD
The Grievance is denied. The Arbitrator finds that the suspension pending dismissal of Grievant by the Employer was for just cause given the fact that there was substantial evidence of a violation of the Employer’s policies.
DATED: Honolulu, Hawaii, July 12, 2007.
On this _____ day of __________, 2007, 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
My Commission expires: _______________
Notary Public, State of
My Commission expires: _______________