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Title: Great Falls Transit District and International Brotherhood of Teamsters Local Union No. 2
Date: June 5, 2006
Arbitrator: Allen Pool
Citation: 2006 NAC 148

 

C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 4-11-06

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

International Brotherhood of Teamsters
Local Union No. 2

                            and

Great Falls Transit District

Involving: Suspension, Linda Huddleston

 

ARBITRATOR'S

OPINION AND AWARD

June 5, 2006

 


            This Arbitration arose pursuant to Agreement between the International Brotherhood of Teamsters, Local Union No. 2, hereinafter referred to as the “Union, and the Great Falls Transit District, hereinafter referred to as the District/Employer under which C. ALLEN POOL was selected by the parties through procedures of the Montana State Board of Personnel Appeals to serve as Arbitrator in the above matter.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.

            The hearing was held in the City of Great Falls, Montana on April 11, 2006 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn.  No written transcript was made of the hearing.  Written closing arguments were timely exchanged between the parties and submitted to and received by the Arbitrator on May 19, 2006 at which time the record was closed.

APPEARANCES:

For the Union: For the Employer:

D. Patrick McKittrick, Esq.
McKittrick Law Firm, P.C.
Strain Building, Suite 622
410 Central Avenue
P.O. Box 1184
Great Falls, MT 59403
(406) 727-4041



                                                                      

Jean E. Faure, Esq.
Jason T. Holden, Esq
Faure Holden
Attorneys at Law, PC
615 Second Ave., N, Suite 201
P.O. Box 2466
Great Falls, MT 59403
(406) 452-6500



STIPULATED ISSUE

Whether the Employer had cause to suspend the Grievant, Linda Huddleston, for three (3) days?  If not, what shall be the remedy?

RELEVANT PROVISIONS OF THE AGREEMENT

Article 2 – Management Rights

 

Section 2.1- Management Rights:          All rights of management and the direction of the business and the exercise of discretion reasonably related thereto, which have not been specifically abridged, delegated, or modified by the Employer under a provision of this Agreement, are recognized by the Union as being retained by the Employer.

 

Section 2.2 – Rules:      The Employer retains the right to establish such reasonable work and safety rules as it considers necessary governing employee conduct on the job and on Employer property provided such rules are not in conflict with any provision of this Agreement, and provided that in any grievance proceeding involving such rules(s) by showing that it is not reasonably elated to the orderly, safe and efficient conduct of the employer’s operations.

 

Article 5 -Grievance Procedure

 

Section 5.5 Step Four: …….. The arbitrator shall consider the grievance and shall render a decision within thirty (30) days of closing the hearing of the case. That decision shall be final and binding on all parties to the grievance.

 

The employer and Union shall share equally the cost of the impartial arbitrator selected in Step Four.

 

Article 8, Section 8.1 Hiring, Suspension and Discharge

 

The Employer has the right to hire any person as an employee and to suspend or discharge employees for cause.  The Employer agrees to furnish the reason, in writing, to the employee and the Union, within ten (10) working days of the incident, or knowledge of the incident which led to the suspension or the discharge.

 

BACKGROUND

            Like other transit districts, the Great Falls Transit District has, in its main facility, a “Ready Room” wherein drivers report for the start of scheduled shifts.  The District’s “Ready Room”, which is approximately 12 feet by 20 feet, contains a Bulletin Board upon which current notices are posted. Drivers are required to be familiar with and to read the notices upon reporting to the Dispatcher and before the start of his/her shift.  The posted documents pinned to the Board include new and/or amended policies, safety information, road conditions, road closures and the current weekly work schedule for drivers, Monday through Saturday. 

            Documents pinned to the Board are normally left there for 30 to 60 days.  Upon removal of a document from the Board, the document is placed in what is referred to as the “Memo Book”, a blue 3-ring binder.  At some time in the future the relevant documents will be incorporated into the District’s Operating Rules and Procedures (Jt-2).[1]  The last time the District’s Operating Rules and Procedures manual were formally updated was in July, 1999.  However, the “Memo Book” is kept in the Dispatcher’s office at all times and is available to all drivers and other employees.  Prior to the incident that led to this Arbitration, there was an established practice where upon employees/drivers could obtain photo copies of posted documents by asking the Dispatcher to make a duplicate copy or make a copy themselves on the photo copy machine.

            The circumstances that led to this arbitration began in October 2005 about eight months after the General Manager, Jim Helgeson, had posted a new policy (Jt-3) on the Board  on February 25, 2005.  The new policy had to do with reproduction of documents posted on the Board.  The policy placed a ban on the unauthorized reproduction of all documents.  The policy also stated that all requests for a copy of documents must be made to the General Manager. The reason was that he wanted to know where the document was going so that he could be prepared for any questions that may come to his office.  The District considered the documents to be proprietary and confidential.  The General Manager had learned that some documents had been made available to the public and he was concerned with the drivers’ safety and privacy.  The drivers’ weekly work schedule posted on the Board contained each drivers badge number, last name, and first initial. 

            On Friday, October 21, 2005 the Grievant reported to the Dispatcher at 1:50 p.m. in the Ready Room.  Her shift was to start at 2:10 p.m.  Sometime prior to this, the Grievant had been informed that a female passenger had lodged a complaint against her.  District policy requires that drivers provide the General Manager with a written response to all complaints.  Upon reporting in that Friday, the Grievant gave her written response to the complaint to the Dispatcher on duty, Cathy Breffon.   Ms. Breffon is also Administrative Assistant to the General Manager, Jim Helgeson.

            At this point in time and before the start of her shift, the Grievant went to the Bulletin Board and began to hand copy information from the drivers’ weekly work schedule.  Also in the Ready Room were six other employees/drivers.  As the Grievant was hand copying information from the weekly schedule, the General Manager approached her.  The exchange that followed between the two included a brief discussion about the Grievant’s written response to the female passenger’s complaint and then a question to the Grievant by the General Manager, “What are doing”?  The Grievant stated that she was copying information from the weekly schedule.  The General Manager asked her if she had read the memo about reproduction of documents.  She replied that that the memo only applied to photo copying documents.  The General Manager testified that he “clarified” the matter by explaining to the Grievant that the prohibition included all forms of copying including hand copying.  

            The General Manger testified that he turned and walked away and as he looked back he saw that the Grievant was continuing to copy from the work schedule.  He approached her again and asked, “Do I need to make it a direct order and told her to stop.”  She stopped, turned away from the Board and as she sat down, she said “Put it in writing”. 

            The General Manager went to his office and returned with a copy of the February 25th memo and gave her the copy.  He instructed her to report to him in his office on Monday morning October 24th.  Upon reporting the following Monday, the General Manager issued the Grievant a three-day suspension.  The charge was “Failure to Follow Specified Instructions, Unintentional” (Jt-5).  The Union filed a grievance that was processed to this arbitration.

POSITION OF THE EMPLOYER

            The Employer did not violate Section 8.1 of the Collective Bargaining Agreement.  There was just cause to issue the Grievant the three-day suspension.  She was aware of the February 25, 2005 memo.  She was copying the weekly work schedule and continued to copy after being told to stop.  She defied a direct order and flaunted the General Manager’s authority.  Progressive discipline was followed.  The offense was similar to the offense for which she was issued a Written Warning in June 2005 i.e. “Failure to Follow Specified Instructions” (Jt-4).   She was suspended for “her pattern of insubordination.”  The General Manager could have issued a discharge but elected to issue a suspension instead.  The grievance should be denied.

POSITION OF THE UNION

            The Employer violated Section 8.1 of the Collective Bargaining Agreement.  The suspension was not for just cause.  The Grievant did not defy a direct order.  When told to stop hand copying information from the weekly work schedule, she stopped.  The Employer did not follow progressive discipline.  The alleged misconduct was not similar to the misconduct for which she received a written warning in June 2005.  It was a wrongful suspension and the Grievant should be made whole for all lost income and benefits.  The grievance should be sustained.

DISCUSSION

            As a prelude to the Discussion a few comments about the Just Cause Standard and Progressive Discipline may be helpful. The Just Cause standard, whether it is referred to as “Cause”, “Proper Cause”, or “Good Cause”, is a standard of fairness and reasonableness.  The standard is not set in stone and continues to be debated among those who practice in the area of collective bargaining and grievance arbitration.

The standard consists of several elements that can affect the question of whether there was just cause to issue an employee an adverse action.  The elements, however, are not just free floating notions.  They are the product of  a long history of evolving arbitration case “law” and serve as guidelines when considering the question of whether there was just cause to discipline an employee.  However, of all the elements, there is one that is nearly inviolable. That is the requirement that there be proof of misconduct, for without proof there can be no cause for discipline. 

Progressive discipline is corrective in nature.  The intent is to allow the impacted employee an opportunity to rehabilitate.  Except for the most egregious behavior, discipline is administered with increasing severity and with notice to the employee that if the unwanted misconduct does not cease he or she may, eventually, be subject to the ultimate penalty; that is, discharge.

On February 25, 2005 the General Manager promulgated a policy with respect to requests for documents.  The policy stated that “Request(s) for copies of Great Falls Transit District documents must be submitted directly to the Operations or General Manager”.  In addition, the policy stated, “Unauthorized reproduction of the aforementioned types of company documents will constitute violation of company policy, ‘Failure to Follow Specific Instructions(s)’”. 

A pivotal issue in this instant case was not the District’s right to establish a new policy but the meaning of the term “reproduction”.  The American Heritage Dictionary defines the word as the act of producing a counter part or an image.  Webster’s New Collegiate Dictionary states that the term means to make an image, a copy, a reconstruction, a duplicate, a replica.  It further states that “reproduction implies an exact or very close imitation of an existing thing, etc.”  However, given the prior practice of photo copying documents almost at will and the fact that drivers routinely took hand notes from the weekly work schedule, which was always in a state of change, the District was not persuasive that the term “reproduction” included hand copying information from schedule at the time the policy was posted.

The District’s contention was that the discipline was for just cause because (1) she failed to obey a direct order and (2) for her pattern of insubordination (District Brief, p. 10).  With respect to the failure to obey a direct order, the evidence record did not support the District’s contention.  On the day of the incident where the Grievant was hand copying information from the weekly work schedule, she stopped copying when given a direct order. 

The General Manager testified on cross-examination that he clarified the matter for her by informing her that the term “reproduction” included hand copying information from the weekly schedule. This was after she responded to his questions, “What are you doing” and “didn’t you read the memo” with the statement that the memo referred only to photo copying.  The record was not conclusive that the General Manager’s clarification at the time was all that clear and that it was understood that the Grievant was to stop hand copying.  However, when he looked back after starting to walk away and saw that she was continuing to take hand notes he returned and gave her a direct order to stop whereupon the Grievant stopped as ordered.  The Grievant did not, as alleged, fail to obey a direct order. 

The District stated that the Grievant “was not for suspended for a hand copying violation.  She was suspended for her pattern of insubordination” (District brief, p. 10).   The evidence record did not support this contention.  There was no pattern of insubordination.  The prior discipline in June 2005 was not insubordination.  She made a mistake when she returned to the yard with a passenger still on her bus.  She admitted her error and did not file a grievance.  Her error in that instance violated policy but to claim it was insubordination was a real “reach”. 

With respect to the hand copying incident, it was clear there was a miscommunication.  If the District had intended that the ban on “reproduction” of documents include hand copying, the District could have very easily made that clear at the onset of the initiation of the policy.  If that had been done, there would have been no dispute.

One other matter needs to be addressed.  The District contended that the Grievant flaunted the Manager’s authority by “demanding” three times that he put in writing that the prohibition on reproduction of documents included hand copying.  The evidence record was clear that the Grievant did, at least twice, say or suggest that the Manager put “it” in writing.  However, her suggestion was not in the form of a “demand”.  It was more in the form of a suggestion because there was obvious confusion here and it should be cleared up.

For the reasons discussed in the foregoing, the conclusion of the Arbitrator is that the Grievant did not fail to obey a direct order and did not demonstrate a pattern of insubordination.  The three-day suspension was unwarranted and not for just cause.  The grievance is sustained.

 

AWARD

 

                        The Grievance is sustained.  The District did not have cause to suspend the Grievant, Linda Huddleston for three days.

 

REMEDY       

            The Grievant shall be made whole for all lost income, with interest, and benefits.  The three-day suspension shall be expunged from her personnel file and all other files.

            The Arbitrator retains jurisdiction over any dispute(s) that may arise out of the implementation of this remedy.

Date: _____________________________                 _________________________________

                                                                                    C. ALLEN POOL, Arbitrator   

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[1] Joint exhibits are referred to as Jt-1, Jt-2, etc.  Union exhibits are referred to U-1, U-2, etc.