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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
___________________________________
between
TRI-COUNTY METROPOLITAN
the District
ARBITRATION
and
AMALGAMATED TRANSIT UNION,
the Union
__________________________________
Issue:
Discharge
ARBITRATION DECISION
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
Par. 1. The maintenance of discipline and
efficiency
Par. 2. Suspension or discharge of an employee who
within thirty-six (36) hours of the action being
Par. 4. Cause for immediate suspension or discharge
f. Posing an immediate or potential danger to
RELEVANT PROVISIONS OF THE DISTRICT’S RAIL TRANSPORTATION RULE BOOK
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,
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.
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.
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.
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.
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.
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
2.
On October 10, 2002, the
Grievant’s train
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
6.
On May 10, 2003, a customer
who had felt
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 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.
The grievance is denied in its entirety.
Dated this 11th
day of April 2007.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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