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Title: Tri-County Metropolitan Transportation District of Oregon and Amalgamated Transit Union Division 757
Date: February 13, 2007
Arbitrator:  Donald E. Olson, Jr.
Citation: 2007 NAC 117

 

 

___________________________________

In The Matter of the Arbitration

          between

  TRI-COUNTY METROPOLITAN
  TRANSPORTATION DISTRICT OF OREGON

                     the District

                                                                                                                                 ARBITRATION
                                                                                                                         FMCS CASE No.0507714-046667

           and

  AMALGAMATED TRANSIT UNION,
  DIVISION 757

                     the Union

__________________________________

Grievant:  “A”

Issue:  Discharge

                        

ARBITRATION DECISION
OF
DONALD E. OLSON, JR.

Representatives:

For TRI-MET                                                                                      Mr. Lawrence Schuckman, Esq.
                                                                                                              Ms. Kimberly Sewell, Esq.

For Amalgamated Transit Union Division 757                          Mr. Giles Gibson, Esq.

                   

OPINION OF THE ARBITRATOR

PROCEDURAL MATTERS

     This proceeding was conducted in accordance with the provisions set forth in Article 1, Section 3, paragraph 5 of the parties’ collective bargaining agreement.  A hearing was held before the undersigned on December 12, 13, and 14, 2006, as well as on February 12, and 13, 2007, at 4012 S.E. 17th Avenue, Portland, Oregon.  The case number assigned this matter was Federal Mediation and Conciliation Service #0507714-046667. 

     The hearing proceeded in an orderly manner.  There was a full opportunity for the parties to make opening statements, to submit evidence, to examine and cross-examine witnesses, and to argue the matter.  All witnesses testified under oath as administered by the arbitrator.  The advocates fully and fairly represented their respective parties.

     There were no challenges to the substantive or procedural arbitrability of the dispute.  The parties submitted the matter on the basis of evidence presented at the hearing and argument set forth in their post-hearing briefs.  The parties stipulated the issue(s) to be determined by this arbitrator.  Moreover, the parties agreed that the arbitrator would retain jurisdiction for a period of sixty (60) calendar days after  the opinion and award had been issued.

     Ms. Kimberley A. Sewell, Deputy General Counsel, and Mr. Lawrence Schuckman, Deputy General Counsel, represented TRI-MET, hereinafter referred to as “the District.”  Mr. Giles Gibson, Attorney at Law, represented Amalgamated Transit Union Division 757, hereinafter referred to as “the Union”, and “A”, hereinafter referred to as “the Grievant.”  The parties requested an opportunity to file post-hearing briefs.  The arbitrator received both briefs on April 2, 2007, at which time the hearing record was closed.  The arbitrator promised to render a written opinion and award no later than fourteen (14) calendar days after the hearing record had been closed.  This opinion and award will serve as this arbitrator’s final and binding decision regarding this matter.

ISSUE(S)

     The stipulated issue(s) to be determine are:

          Was the discharge of the Grievant for just cause, and if not, what should the remedy be?

RELEVANT PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT

             ARTICLE 1, Section 4 – Discipline

          Par. 1. The maintenance of discipline and efficiency
          is the province of the District.  Both parties agree
          that the District may post District rules and may
          discipline employees for violation of such rules,
          provided that each employee is made aware of each
          rule.  Any new rule, revision, or amendment may be
          grieved by the Association in accord with the terms
          of Article 1, Section 3. Rules shall not be in
          conflict with existing agreement.

          Par. 2. Suspension or discharge of an employee who
          has been an employee of the District for a period
          of excess of 120 days shall be based on just and
          sufficient cause with full explanation given to
          the employee in writing.  The Association will be
          notified in writing of the suspension or discharge
 
         within thirty-six (36) hours of the action being
          taken.

          Par. 4. Cause for immediate suspension or discharge
          is as follows:

               f. Posing an immediate or potential danger to
                  public safety.

RELEVANT PROVISIONS OF THE DISTRICT’S RAIL TRANSPORTATION RULE BOOK

          III. TRAIN OPERATING RULES

305    RESPONSIBILITY FOR TRAINS

The Operator assigned to the movement of a train has full responsibility for its operation.

316    VISUAL OPERATION OF TRAINS

Operators must be visually alert at all times

when operating their trains, including times while under wayside signal protection, and must be prepared to bring their trains to an immediate stop should obstructions to safe operation be observed.

317    STREET OPERATIONS

A.  Trains in a street environment must be operated with particular attention to traffic and pedestrians.  Train operation will be subject to indications of regular traffic signals and signs.  Operators must comply with all motor vehicle laws except where wayside signals and signs govern train operations.

B.  If a preempt detector fails, stop the train prior to the intersection, notify Control, wait for a fresh green for parallel traffic, sound two warnings and proceed when safe.

          IV. SIGNAL/FLAGS/SWITCHES/SIGNS

402    STOP INDICATION

The Operator must stop the train upon receiving a stop indication at a wayside signal and must not proceed until the indication clears.  If the indication fails to clear after one minute the Operator must call Control.

BACKGROUND

     The District is a governmental agency that provides bus and light rail service to three counties in the State of Oregon, namely, Multnomah, Clackamas, and Washington Counties.  The District’s light rail train operations began in 1985-1986.  This service not only covers the major city of Portland, Oregon but also other surrounding communities near Portland, Oregon, including the city of Hillsboro.  As the light rail system expanded, service was provided to Hillsboro in September 1998.

     At the time this dispute arose on January 2, 2005, the Grievant was employed as a rail operator.  The Grievant had previously been employed as a bus driver for the District, however, transferred to the rail component in April of 2002.  Thereafter, the Grievant completed his rail operator training on April 19, 2002, and began working as a rail operator in May of 2002.

    Shortly after 4:00 p.m. on January 2, 2005, the Grievant was operating his light rail train on Washington Street in the city of Hillsboro.  The Washington Street track alignment shares a 60-foot right-of-way, with houses and businesses on both sides, as well as other vehicular traffic from Government Center until 11th Avenue.  Several streets intersect with the Washington Street corridor.  One of those streets is 5th Avenue, which is a one-way street for South bound traffic.  While the light rail vehicles operate on Washington Street they are operating in mixed use environment.  Furthermore, the light rail vehicles operating on the Washington Street segment of track are controlled by a preempt signal system.   There are two signal heads for each preempt controlled intersection that display signal indication(s).  The movement of the light rail train is controlled by a horizontal/vertical bar system.  In the preempt signal system a horizontal yellow bar indicates stop.  Anytime a train operator observes a yellow horizontal bar, the operator must stop the train before entering an intersection.  If the operator observes a flashing horizontal yellow bar, that indicates to the operator that the signal is phasing towards a proceed indication, which occurs normally after five flashes of the horizontal yellow bar.  A proceed or go light indication in the preempt signal system is a white vertical bar.  The train operator activates the pre-emption signals by placing a call on the VETAG loop detector.  When this call is placed as the train is leaving a platform station, the signal is instantaneously sent to all traffic signals located between two platform stations.  This cascading of the signals allows the train to preempt several intersections with one call, rather than placing an individual call at each intersection.

     At the time of the incident on January 2, 2005, the Grievant was leaving Central Station at Fourth and Washington traveling East to the Tuality station at Eighth and Washington.  The Grievant claimed he placed a call from his train on the VETAG loop at the Central Station to request a pre-emption to proceed to Tuality station.  The Grievant’s request was received at the Fourth Avenue signal box.  Thereafter, the Grievant claims he received a white vertical proceed bar at Fourth Avenue.

     Without the Grievant’s knowledge a fire engine from the city of Hillsboro was dispatched to a fully engulfed house fire located South of Washington Street.  Once the fire unit was dispatched it eventually proceeded South on 5th Avenue.  During the interim the fire truck made a request via its Opticom device for pre-emption of the traffic signal at the intersection of 5th Avenue and Washington.  Opticom is a device used by emergency personnel to allow emergency vehicles to “preempt” or have priority status at a traffic signal.  This system working in conjunction with the District’s preempt signal system is designed to allow whatever signal request is received first at the single box (the train or the fire apparatus) will be the signal that is serviced first.  In this case, the city of Hillsboro’s fire engine’s Opticom pre-emption request was registered at the signal before the request made from the District’s train.  At any rate, the Grievant’s train request to proceed was queued until the signal could service the fire truck’s request.  However, the Grievant for whatever reason, albeit he claimed he had the white vertical bar to proceed, accelerated his train through Fourth Avenue and reached a speed of 24 mph as he approached the intersection of 5th and Washington.  The Grievant maintained he did not hear the fire engine’s siren or see its emergency lights flashing when the train he was operating collided with the fire engine.  The impact of this collision derailed the 110,000 pound front car of the train completely off the track, where it came to rest facing towards the South, next to the fire engine.  The fire engine was damaged beyond repair.  Several individuals were seriously injured due to this collision, including the Grievant, some train passengers, and the majority of firefighters on the fire engine.

     Immediately thereafter, a CART (Crash Analysis Reconstruction Team) began an investigation of this collision.  That team was comprised of investigators from the Washington County Sheriff’s office, the Hillsboro Police Department and the Beaverton Police Department, working in conjunction with the District’s staff, as well as the City of Hillsboro’s Traffic Department.

     After an extensive investigation regarding the collision had been conducted by “CART”, their report was issued on or about March 2, 2005.  The findings of CART concluded human error caused the crash between the District’s train and the Hillsboro fire engine.  Specifically, the CART report found that the Grievant failed to stop his train at the stop signal at SE 5th Avenue and SE Washington street, even though the train had a stop signal at that location.

    Meanwhile, the District was conducting its own investigation of the incident, however, waiting for the final CART report to be issued before deciding if it was going to discipline the Grievant.  On March 21, 2005, the District issued the Grievant a Notice of Proposed Dismissal, alleging the Grievant’s conduct constituted a “Threat to Public Safety, and a violation of Operating Rules 305, 317 and 402.  The District scheduled a pre-discipline meeting with the Grievant and his union representative for Monday, March 28, 2005.  That meeting was held, and shortly thereafter, the Grievant was terminated.

     On April 1, 2005, the Grievant filed a timely grievance with the Union.  The Grievant at the time the grievance was filed claimed he was victim of a District/City of Hillsboro publicity campaign.  Moreover, he claimed that Article 1, Section 4, paragraph 4f of the parties’ collective bargaining agreement does not have any application in this dispute.  The Grievant’s grievance was processed through the steps of the grievance procedure without resolution.  Subsequently, the Union appealed the dispute to arbitration.  After the arbitration hearing had been concluded the parties submitted their post-hearing briefs.

POSITION OF THE PARTIES

POSITION OF THE UNION

     Initially, the Union contends the Grievant was not discharged for just and sufficient cause.  Second, the Union alleges the District has the burden of proving that the Grievant was discharged for just and sufficient cause under the terms of the parties’ collective bargaining agreement.  Moreover, the Union argues that even assuming that the Grievant proceeded against a horizontal bar signal, termination was an unduly excessive penalty in light of the District’s failure to train him that the City of Hillsboro’s Opticom emergency vehicle preemption system could override the light rail transit preemption system.  Likewise, the Union claims the District’s failure to adequately train the Grievant and other rail operators, coupled with the consistent operation of the cascading preempt signals and related signalization, created a Pavlovian visual trap for the Grievant and other operators.  Furthermore, by its own actions since the accident, the Union asserts that the District has implicitly admitted that its pre-accident training was inadequate and that it failed to adequately coordinate the operations of the light rail and emergency vehicle signal preemption systems.  Additionally, the Union maintains that the District has improperly relied on alleged prior discipline to justify its termination of the Grievant.  And then too, the Union asserts earnestly that the District’s discharge of the Grievant was excessive in light of the lesser discipline it has imposed in similar circumstances in the past.  In conclusion, the Union requests that the grievance be sustained, and that the Grievant be reinstated with full back pay, fringe benefits, and seniority.

POSITION OF THE DISTRICT

    The District argues that it has proven by the preponderance of evidence standard that the Grievant was discharged for just and sufficient cause.  Furthermore, the District claims the Grievant’s actions represented a threat to public safety.  Moreover, the District alleges that its investigation was reasonable in that it relied, in part, on the findings of an objective investigation performed by multiple law enforcements agencies (the CART report).  Additionally, the District argues that it is clear the Grievant failed to obey his signal in violation of the most fundamental rule necessary for the safe operations of a transit system.  Likewise, the District insists the Grievant had extensive training regarding the operation of signals.

Further, the District claims the Grievant’s track record as an operator demonstrates that he has a history of inattention and lack of cooperation.  Besides further, the District alleges that based on the January 2, 2005, incident and the Grievant’s history, termination was warranted.  Also, the District insists that its preventable accident policy provides for discharge of an employee when the accident is serious, fatal, and/or multiple-person injuries occur, or the accident involves extensive property damage.  Besides further, the District avows that the Grievant’s lack of knowledge regarding the city of Hillsboro’s Opticom system did not contribute to the accident on January 2, 2005.  Finally, the District requests the grievance be denied, based upon the foregoing arguments set forth in their post-hearing brief.

DISCUSSION

     This arbitrator has carefully reviewed the entire evidentiary record, including pertinent testimony, and the parties’ excellent post-hearing briefs, as well as cited arbitration awards.

     To begin, this arbitrator is cognizant of the fact that in order for the District to either discipline or discharge an employee they must demonstrate they had just and sufficient cause to do so.  Clearly, in the opinion of this arbitrator the “just and sufficient cause” standard specified in the parties’ collective bargaining agreement requires this arbitrator to determine two factors, namely, has the alleged misconduct or dereliction of duty upon which the discipline was administered been adequately established by the District’s proof, and if proven or admitted, then was the penalty meted out to the Grievant reasonable in light of the gravity of the incident leading up his eventual termination.

     Frankly, this arbitrator concludes the District has adequately established that the Grievant’s conduct while operating his light rail train on January 2, 2005, in the vicinity of the intersection of 5th Avenue and Washington Street in Hillsboro, Oregon, constituted a “threat to public safety”, as well as a violation of the District’s operating rules, that is, rules 305, 317, and 402.  Moreover, the District alleged the Grievant since his employment as a Rail Operator began on May 12, 2002, and prior to the incident in question, he had violated a number of significant operating  rules directly related to the LRT system and public safety.

The evidentiary record reflects this claim by the District is correct.  Nonetheless, the Union claims the alleged discipline meted out the Grievant is “stale”, and has no bearing in the incident that gave rise to the Grievant being discharged.  This arbitrator cannot countenance such a claim by the Union.

Obviously, a review of the Grievant’s discipline record reflects an individual who is unobservant to his duties as a Rail Operator.  To say the least, this arbitrator finds the Grievant’s actions, or lack thereof while operating a light rail train from May 12, 2002, until January 2, 2005, to be far below the norm for a Rail Operator.  Without doubt, his disciplinary record during that period reflects the following:

1.    On September 23, 2002, the Grievant’s train violated red signal 20A, which protects the interlocking at NE 11th & Holladay.  His train was brought to a stop by the ATS system.  This infraction led the Grievant to receive re-instruction.

2.    On October 10, 2002, the Grievant’s train violated red signal W1084, an intermediate signal in a high-speed territory between Willow Creek and Elmonica.  The train was brought to a stop by the ATS system.  Once again, the Grievant received re-instruction.

3.    On October 10, 2002, the Grievant’s train violated red signal W6, which protects the SW 11th and Yamhill interlocking.  The train was brought to stop by the ATS system.  Once again, the Grievant received re-instruction.

4.    March 24, 2003, the Grievant failed to stop at the berthing marker WB at Hollywood, which resulted in damage to the trailing door when it opened into a platform bollard.  The Grievant was re-instructed and issued a Warning that another such incident would result in discipline.

5.    On May 8, 2003, the Grievant’s train was westbound approaching 185th Avenue when he saw a southbound motor vehicle stopped inside the lowered crossing gate.  The Grievant assumed the driver would reverse clear of the track, but the driver did not do so.  The Grievant’s train contacted the front end of the motor vehicle.  This event was judged to have been a preventable accident.

6.    On May 10, 2003, a customer who had felt threatened in Rose Quarter boarded the Grievant’s eastbound train and attempted to gain the Grievant’s assistance by initiating a call to the Grievant on the LRV intercom.  The Grievant chose to ignore her calls.  Then as supervisors became aware of the incident and began to investigate, the Grievant misrepresented the facts.  As a result of the Grievant’s actions he was issued a one-day suspension without pay for violation of fundamental policies and procedures that define how the District applies values for customer service, safety, and security, and for failure to honestly report the facts (Rail Transportation rule 18H).  Also, as a result of this incident, the Grievant was given a unique two-day intervention on rail system safety and customer service.  These one-on-one sessions were conducted on May 29th and 30th.  Additionally, on June 12, 2003, a Training Assistance who conducted the safety intervention, took a detailed observation ride with the Grievant.

7.    On July 14, 2003, the Grievant opened the doors on the track side at Sunset Transit Center, off the boarding platform.  The Grievant was not aware of the error until a Supervisor reported it by radio to the Controller.  The Operator of a train in the opposing direction also noticed the error and stopped short of the Grievant’s train.  The Grievant was issued a one-day suspension without pay and advised that future rule violations will result in discipline up to and including termination.

8.    On August 1, 2004, the Grievant’s train violated red signal W506 and was brought to a stop by the ATS system.  Another train occupied the block protected by the signal.  The Grievant received additional instruction.

      The parties have mutually agreed that Article 1, Section 4, paragraphs 1 and 2 of their collective bargaining agreement, allows the District to post rules and discipline employees for violation of such rules, if just and sufficient cause exists.  Of course, in order to do so the District must make sure each employee is made aware of each District rule.  In the instant case, the District has demonstrated that it provided the Grievant with the operating rules it used to justify his discharge.

     Unquestionably, in the opinion of this arbitrator the

Grievant’s track record related to violations of significant operating rules and other incidents while operating a train as a Rail Operator prior to the accident incident on January 2, 2005, clearly demonstrates he was incapable of performing his duties in a safe manner.  To say the least, there is no doubt he performed his duties as a Rail Operator on many occasions in a cavalier, inattentive, and reckless manner.  Obviously, the Grievant’s record of violating operating rules of the District borders on negligence.  Be that as it may, the District without question is extremely safety conscious regarding the operation of its trains and buses.  Indeed, the Grievant received additional training the majority of the time when it was reported that he had violated a District operating rule.  However, even with such additional training being provided to the Grievant, he once again violated a basic/fundamental operating rule on January 2, 2005, at the intersection of 5th Avenue and Washington Street in Hillsboro, Oregon, when he failed to stop his train when the signal at that intersection indicated a solid horizontal yellow bar.

Most assuredly, the Grievant had earlier been forewarned if he violated any further District operating rules, he would subjected to receive additional discipline up to and including discharge.

    This collision was of such significant force, that not only did it derail the train, but it pushed the 110,000 pound vehicle across the intersection where it came to rest sideways.  The train still is not back in service, albeit the District has spent over $250,000 in repair costs.  On the other hand, the fire truck was damaged beyond repair.  In fact, the replacement cost for a new fire truck was over $300,000.  Of course, there was other property damage.  More importantly, several individuals suffered severe injuries.  Fortunately, no one was killed.  By all means, this incident was a serious major accident which was found by the Crash Analysis Reconstruction Team (CART) to be caused by human error, specifically when the Grievant failed to stop at the stop signal at SE 5th Avenue and SE Washington Street.(Emphasis supplied.)  This arbitrator was duly impressed by the CART report, which was conducted by independent experts in accident reconstruction, that is, multiple law enforcement agencies.  Obviously, the CART report included an extensive investigation of the facts, as well as scientific findings surrounding the accident on January 2, 2005.  Furthermore, this arbitrator must conclude that it certainly was reasonable for the District to rely on the findings of the CART report which were objective and unbiased, when it reached a decision to terminate the Grievant.

    This arbitrator takes note of the Union’s arguments related to the city of Hillsboro’s fire department Opticom system, and the Union’s claim that the operators had never been informed of the fact that emergency vehicles could preempt the light rail train signal system along Washington Street.  The evidence supports that claim, however, knowledge or lack thereof by the train operators of the Opticom system and how it can preempt the light rail train signal system has absolutely nothing to do with whether the Grievant saw and responded to a stop signal (Yellow Horizontal Bar.  Moreover, the fact the District issued a Trainline regarding emergency vehicles after the accident occurred does not mitigate the factual scenario that the Grievant “cruised” past a stop signal at 5th Avenue and Washington Street.  The entire argument by the Union regarding the fact that the train operator’s had never been told of Opticom is irrelevant, and more importantly does not excuse the Grievant’s failure to obey the yellow horizontal bar signal which was displayed at 5th Avenue and Washington Street, when the Grievant’s train entered that intersection colliding with the fire apparatus.

In brief, this arbitrator concludes the Grievant never looked at that signal.  Obviously, it does not matter why the stop signal was being displayed.  This arbitrator agrees with the District, in that an operator is not required to know why a stop indication is displayed, however, an operator is required to obey the signal.  That is the bottom line in this dispute.

     This arbitrator is cognizant of the fact that the District’s preventable accident policy specifically provides for discharge of a Rail Operator in “serious, fatal, and/or multiple-person injury accidents, or accidents involving extensive property damage.  Since the accident of January 2, 2005, was preventable, as well as of serious nature, involving injuries and extensive property damage, this arbitrator believes the District has satisfied its burden of proof by the preponderance of the evidence standard to establish it had just and sufficient cause to discharge the Grievant.  Clearly, there are no mitigating factors to support the Union’s request to have this grievance sustained.  Certainly, a single incident of unsafe driving, as in this case, can show that a train operator is an immediate or potential danger to public safety.  In addition, this arbitrator concludes the Union failed to provide any meaningful evidence to support any of the allegations it raised concerning conspiracy theories, publicity campaigns, Pavlovian traps, and other reasons to excuse the Grievant’s conduct.

     Thus, based upon evidence and for the reasons set forth above, this arbitrator concludes the discharge of the Grievant was for just and sufficient cause.

AWARD

    The grievance is denied in its entirety.

Dated this 11th day of April 2007.
Tacoma, Washington.

________________________________
Donald E. Olson, Jr., Arbitrator

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