Title: Regional Transportation District and Amalgamated
Matter of an Arbitration
REGIONAL TRANSPORTATION DISTRICT
AMALGAMATED TRANSIT UNION
DONALD E. OLSON, JR.
ATU Division 1001
Mr. William B. Jones, Esq.
Regional Transportation District Mr.
Rolf G.Asphaug, Esq.
OPINION OF THE ARBITRATOR
This proceeding was conducted in accordance with the provisions of
Section 10.g of the parties’ collective bargaining agreement.
A hearing was held before the undersigned on Tuesday, April 17, 2007, at
1600 Blake Street, Denver, Colorado. The
hearing commenced at 9:00 a.m. and concluded at 3:35 p.m.
The grievance case numbers associated with this dispute were: FMCS
No. 060418-55450-7 and 06-16049.
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
authorized the arbitrator to retain jurisdiction in the matter for a reasonable
period after the decision had been rendered.
The parties submitted the matter on the basis of evidence presented at
the hearing and through argument set forth in their respective post-hearing
parties stipulated the issue(s) to be determined by this arbitrator.
Mr. Rolf G. Asphaug, Deputy General Counsel, represented the Regional
Transportation District, hereinafter referred to as “the District.”
Mr. William B. Jones, General Counsel, represented the Amalgamated
Transit Union, Local 1001, hereinafter referred to as “the Union”, and Mr.
XXX, hereinafter referred to as “the Grievant”.
The parties introduced three (3) joint exhibits, as well as several
exhibits offered by each party, all of which were received and made a part of
the record. The parties requested
an opportunity to file post-hearing briefs, which were to be submitted to the
arbitrator no later than May 18, 2007. Later,
the parties agreed to extend the time for submission of their post-hearing
briefs. The arbitrator received
both briefs on June 7, 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. Shortly thereafter, the
arbitrator requested an extension of time to render his opinion and award, due
to an hand injury. The parties
mutually agreed to this request. This
written opinion and award will serve as this arbitrator’s final and binding
decision regarding this dispute.
The stipulated issue(s) are:
Was the Grievant terminated for proper cause?
In response to concerns raised about the
PROVSIONS OF THE 2006-2009 COLLECTIVE BARGAINING AGREEMENT
ARTICLE 1 – SECTION 5
The management of the System and he direction
ARTICLE 1 – SECTION 9
The right to discipline is vested in the
Entries shall not be placed against the
RELEVANT PROVISIONS OF THE PERFORMANCE CODE INFRACTIONS
The District will not tolerate harassing, indecent,
V11, Contempt of Authority – Insubordination
Any person subject to this code shall be found in
Example of a Class C infraction are when [an]
Examples of a Class B infraction are when an
Examples of a Class A infraction are when an
At the time this dispute arose the Grievant was employed as a Revenue
Technician assigned to the District’s Treasury building at its Platte
Facility. The Grievant had been
hired by the District in November 2000, and worked as Revenue Technician until
being terminated just shy of his 6th anniversary of employment.
The Grievant’s job consisted of repairing and maintaining ticket
vending (TVM) machines, fare boxes, and other equipment.
On the morning of November 17, 2006, Supervisor XXXX assigned the
Grievant at or about 8:25 a.m. to meet and assist an electrical contractor at
the 10th and Osage Light Rail station.
November 17th was opening day for the District’s new
Southeast Light Rail line.
Grievant informed Supervisor XXXX that he would need five minutes to finish what
he was doing in the shop. Eventually,
the Grievant cleared the Treasury building shop at about 8:50 a.m., after having
checked out equipment he would need to assist the contractor.
Shortly after arriving at the 10th and Osage Station the
Grievant telephoned Supervisor XXXX to report he had experienced problems when
trying to turn off power to the validator unit by shutting down power to the TVM. Later, at or about 9:14 a.m. Supervisor XXXX called the
Grievant back to report he had been unable to reach anyone at Facilities
Maintenance to assist the Grievant in gaining access to the “green box.”
Supervisor XXXX asked the Grievant to give the phone to the electrical
contractor so Supervisor XXXX could find out what the electrician’s plans were
for the day. When the Grievant took
the phone back, Supervisor XXXX told him that he needed to stay with the
electrician until another Revenue Technician arrived to replace him.
At this point, the Grievant allegedly told Supervisor XXXX: “you have
been f***ing with me for six years and I am not going to put up with it any
more!” When Supervisor XXXX attempted to tell the Grievant that that
was enough the Grievant continued, cutting his supervisor off and using the
f-word again. Finally, the Grievant
allegedly then yelled, “I am doing the talking now and you are going to listen
to me for a change.”
Thereafter, Supervisor XXXX advised the Grievant that he was being
relieved of duty and to report back to the shop.
Meanwhile, Supervisor XXXX called and asked for a RTD Street Supervisor
to come to his office, so that upon the Grievant’s arrival at the Treasury
facility, he could be escorted off the District’s property.
Street Supervisor YYYY arrived at the Treasury shortly thereafter. During the interim the Grievant allegedly failed to report
back to the Treasury. Once again,
Supervisor XXXX called the Grievant and learned he was still at Osage Station.
Supervisor XXXX then told the Grievant to stay at Osage Station and wait
for the Street Supervisor. At about
10:00 a.m. Supervisor YYYY and the Grievant’s replacement arrived at Osage
Station, however, the Grievant had left the site. Street
Supervisor YYYY reported the events to Supervisor XXXX, who instructed YYYY to
return to Treasury. Sometime after
10:15 a.m. the electrical contractor’s office called Supervisor XXXX and
reported its employee was at the Pepsi Center, and that the Grievant was also at
this site. Street Supervisor YYYY
was dispatched to Pepsi Center. Upon
his arrival at the site the Grievant was no longer there.
Eventually, the Grievant reappeared at Pepsi Center, and explained he
left to use the restroom at a Conoco gas station. Once again, Street Supervisor YYYY relieved the Grievant of
duty at or about 11:15 a.m. Shortly
thereafter, Street Supervisor YYYY at the Grievant’s request dropped him off
at a bus stop. Simultaneously,
Supervisor XXXX consulted with his supervisor and the District’s Labor
Relations Manager on how to deal with the situation.
A decision was then made for Supervisor XXXX to issue two charges against
the Grievant, namely, Contempt of Authority – Insubordination, and for
Harassing, Indecent, Lewd, or Vulgar Conduct.
The Grievant picked up the charges in person on November 21, 2006.
Later, that same day the Grievant submitted his written response to the
again, Supervisor XXXX met with his boss and the Labor Relations Manager and
later found the Grievant at fault on both charges.
Subsequently, a grievance was filed on the Grievant’s behalf.
The grievance was processed throughout the contractual grievance
procedure without resolution. Finally,
the grievance was appealed to arbitration.
At the arbitration hearing the Employer claimed it had proper cause to
terminate the Grievant, while the Union contended the Employer did not have
proper cause to terminate the Grievant.
This arbitrator has carefully reviewed the entire evidentiary file,
pertinent testimony, and the parties’ post-hearing briefs, as well as cited
Clearly, the term “proper cause”, which is set forth in Article 1,
Section 5 of the parties’ collective bargaining agreement is synonymous with
the term “ just cause.” In brief, it is this arbitrator’s opinion that in order to
prove the District had “proper cause” to discharge the Grievant, it must
demonstrate by a preponderance of evidence, that is, the District must convince
this arbitrator that its evidence or contentions are more probable than not,
that it had proper cause to discharge the Grievant.
Under these circumstances, this arbitrator is charged with a
responsibility of making sure that the cause asserted by the District for
terminating the Grievant was just and the penalty was also fair and not
disproportionate to the offense.
In the instant case, the Union on behalf of the Grievant contends the
District did not have proper cause to terminate the Grievant.
Specifically, the Union claims that the Grievant was excessively
disciplined for the alleged violations of the District’s Performance Code.
Furthermore, the Union asserts the Grievant was denied due process, since
the District failed to conduct a proper investigation of the facts surrounding
the Grievant’s alleged misconduct.
Frankly, this arbitrator finds these contentions by the Union on the
Grievant’s behalf to lack merit. Clearly,
after the events of November 17, 2006, had occurred and prior to the Grievant
being terminated on November 28th, the District and its agent
Supervisor XXXX conducted a fair and objective investigation of events
surrounding the Grievant’s actions on November 17, 2006.
First, Supervisor XXXX attempted to speak with the electrician who was
working with the Grievant at the 10th and Osage Station, in an
attempt to find out if the electrician had overheard the Grievant’s
profanities. Although the
electrician was unavailable, his employer reported back to the District that its
employee was not close enough to hear the Grievant’s conversation.
As such, the contractor concluded its employee would not be much help to
the District. However, this
arbitrator concludes it is not material, if the electrician heard anything, or
not, since the Grievant in his three (3) page response written on November 21,
2006, involving the charges leveled against him, admitted to his profane tirade
during his telephone conversation with Supervisor XXXX.
Obviously, the District did not need to investigate any further at this
point, since the Grievant had already confessed to using profane language
directed at Supervisor XXXX.
Moreover, this arbitrator takes cognizance of the fact that the Grievant
in his response letter written on November 21, 2006, also admitted that
Supervisor XXXX called him while he was at Osage Station, and at this time the
Grievant was instructed by Supervisor XXXX to remain there and someone would
come to replace him.
To say the least, the facts of this case are simple, and
straight-forward. Simply put, the
District has carried its burden of proof to sustain a finding by this arbitrator
that the Grievant is guilty as charged.
Next, this arbitrator must now determine if the penalty meted out to the
Grievant was justified. Clearly,
during the time the Grievant worked under Supervisor XXXX’s direction, until
November 17, 2006, he had an exemplary disciplinary record indicating he had not
received any formal discipline.
where a collective bargaining agreement calls for either just cause or proper
cause before discipline is applied to employees, an element of just cause, that
is, “progressive discipline” must be applied.
However, when an employee commits a grossly insubordinate act, or fails
to follow directs orders from management, they cannot be afforded the protection
of being disciplined progressively. In
fact, this kind of conduct calls for summary discharge.
In the instant case, the Grievant in a telephone conversation with
Supervisor XXXX, continued to denigrate and abuse his supervisor by using
obscene language, even after he was relieved of duty and instructed to return
immediately back to Treasury. Of
course, the evidentiary record supports a finding that the Grievant did not
return back to Treasury as instructed, but made six (6) telephone calls in a row
between 9:18 a.m. and 9:34 a.m., and received one incoming call at 9:35 a.m.
Clearly, the Grievant made no mention of these telephone calls in his
response statement, but attempted to paint himself as an industrious employee
trying to pack up and head back to Treasury as instructed.
This arbitrator does not believe the Grievant’s self-serving written
response to the charges leveled against him by the District.
Obviously, the Grievant was acting in an irrational manner when he
engaged an insubordinate tirade towards his supervisor, and failed to follow
explicit directions from Supervisor XXXX, including a later order from
management to stay at the 10th and Osage station.
As stated earlier, the Grievant admitted in his written response of
November 21, 2006, that in fact he did engage in this type of conduct.
As a result, is the penalty of termination fair or just in this case?
This arbitrator concludes the answer is “yes.”
is no place in an employer-employee relationship to refuse to follow legitimate
work orders, which in fact constitute insubordination, or to engage in abusive,
disparaging, or downright ugly oral comments to an employee’s supervisor.
This kind of conduct cannot be condoned or tolerated.
Arbitrator Schmidt succinctly and appropriately stated the following in Ross
Gear & Tool Co., 35 LA 293, 295-96 (1960):
“It is implicit in the employer-employee
In reality, the District cannot operate without a reasonable measure of
discipline and without a reasonable attitude of respect from its employees for
the authority of their supervisors. The
Grievant by his own conduct in this case, sealed his fate.
Thus, based upon the evidence and for the reasons set forth above, this
arbitrator concludes the District had proper cause to discharge the Grievant.
The grievance is denied.
this 1st day of July 2007.