Title: MV TRANSPORTATION, INC. and Amalgamated
Transit Union Local 1225
ARBITRATION PROCEEDINGS PURSUANT TO
This Arbitration arose pursuant to Agreement between the Amalgamated Transit Union Local 1225, hereinafter referred to as the “Union”, and MV Transportation, Inc., hereinafter referred to as the “Company”, under which C. ALLEN POOL was selected by the parties through procedures of the American Arbitration Association to serve as the Arbitrator. 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 Oakland, California on December 9, 2008 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 and a 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 January 16, 2009 at which time the record was closed.
Was the termination of Rosalio Torres-Mora for just cause? If not, what shall be the appropriate remedy?
The Grievant was a seven-year employee of the Company, a bus driver.
During the time of his employment he had no prior disciplines of any
kind. On July 14, 2008 he was
appointed Interim Shop Steward. As a
shop steward his duties changed. He
no longer drove a bus route as his primary duty.
As a shop steward, the Company provided him with an office where he could
meet with other drivers as needed. The
office made available to the Grievant was a cubicle in a trailer.
On his first day at work as shop steward, the Grievant met with the
General Manager, Tim Dumandan. Mr.
Dumandan and he discussed his new role and duties.
The Grievant was reminded that, as a shop steward and according to an
agreement with the Union, he was not eligible for overtime pay.
His daily rate of pay was limited to eight hours of straight time payable
by the Company. If the Grievant were
to be away from the job site on Union business, he would be paid for that time
by the Union.
In keeping with the agreement with the Union, the Grievant, as shop
steward, was required to provide the General Manager with a written schedule of
his daily duties. In addition to
giving the schedule to the Mr. Dumandan, the schedule was posted in a
conspicuous place so that other drivers would be aware of the Grievant’s
availability on a daily basis. Any
changes in the Grievant’s daily schedule as shop steward were to be submitted
to the General Manager before becoming effective.
Each bus driver was assigned to a specific route, a “Run”.
A driver would stay on the assigned Run until assigned to another Run.
Assignment to a different Run usually occurred every three of four
months. A Run is scheduled, planned
to take no more than eight hours. The
Grievant’s assignment was Run No. 625A. With
his new duties as shop steward, Run No. 625A was assigned to two other drivers,
hold-down drivers: Glen Turner and Winifred Cooper.
The daily routine of a bus driver was to arrive at the Yard a few minutes
before departing on a Run. The
Pre-Trip preparation included a physical inspection of the bus to be sure it was
in proper condition for the day’s run. The
duration of the Pre-Trip inspection was expected to take no more than 15
minutes. Before leaving the Yard to
commence a Run, a driver would manually activate the bus’ Global Positioning
A GPS is installed on each bus. The
GPS allows the Company to track each bus from the time it leaves the yard to the
time the bus returns to the Yard. The
GPS also records the arrival times of a bus at each scheduled bus stop on its
Run. The information provided by the
GPS allows the Company to have a record of each time a bus is late in arriving
at a scheduled bus stop on that Run and or late in returning to the Yard at the
end of the Run.
At the end of a scheduled Run and upon entering the Yard and before
turning in his/her time sheet, a driver is expected to conduct a Post-trip
inspection of the bus. The Post-trip
inspection includes both the inside and outside of the bus.
If the inspection reveals any damage to the bus or the finding of any
items left on board by passengers, the driver prepares a written report.
The time allotted to perform the Post-trip inspection is five minutes.
Also, upon return to the Yard, the driver manually deactivates the GPS.
This is usually done before the inspection but sometimes it is done after
the Post-trip inspection.
Following the Post-trip inspection, the driver reports to the Dispatcher
turns in his/her timesheet. If a
time difference is noted showing a difference between the time stamped on the
timesheet by the Dispatcher and the eight hours a run is expected to take, the
driver is “late” and the driver makes a note at the bottom of the time sheet
explaining the difference. The
General Manager testified that drivers, due to traffic, road construction, etc.,
are sometimes late. Mr. Dumandan testified, on direct examination, that when
drivers come to the dispatch window to turn in a timesheet, the Dispatcher
stamps the time on the timesheet. If
the arrival time and the clock in the dispatch office are the same or close to
the same, the Dispatcher signs off on the time sheet (Tr. p. 52).
Drivers are paid overtime for all time, usually a few minutes, spent
driving a Run over the scheduled eight hours.
The events that led to the Grievant’s discharge began with his July 31,
2008 time sheet. On August 1st,
the payroll office notified General Manager Tim Dumandan that the Grievant’s
July 31st time sheet included four hours of overtime.
The Grievant had entered his arrival time at work that day as 8:00 a. m.
and his sign out-time as 8:31p.m. Mr.
Dumandan called the Grievant in and asked for an explanation.
The Grievant told him that it was an error that he had actually arrived
that day at noon. The Grievant
apologized and characterized the error as “my bad”, my mistake.
Nothing further was done at the time.
However, Mr. Dumandan testified that he felt the Grievant had not taken
the matter seriously enough and decided to pull the Grievant’s time sheets for
the two previous pay periods, June 24 through July 23, to see if there might be
some kind of pattern of falsifying timesheets (Tr. p. 103, 104-105).
Mr. Dumandan found time differences on some of the days.
He prepared a spreadsheet showing the time differences for those days
On August 6th, Mr. Dumandan met with the Grievant and placed
him on “Out of Service” status and told the Grievant he would let him know
about the investigation when completed (Tr. p. 106).
The Grievant called Union President William “Bob” Parks.
On August 7th, the three men met and the Grievant was given a
copy of the spreadsheet prepared by Mr. Dumandan (C-1) and told to write in an
explanation on the spreadsheet explaining the time differences for each day
listed on the spreadsheet (Tr. p. 6). The
Grievant, without the aid of Mr. Parks, wrote in, as instructed, explanations
for the time differences.
Meanwhile, Mr. Dumandan prepared a second spreadsheet showing days where
there were time differences for June 24th through July 9th.
(C-2) He gave this second
spreadsheet to the Grievant and instructed him to explain the time differences
on the spreadsheet. After reviewing
the Grievant’s explanations on the two spreadsheets, Mr. Dumandan came to the
conclusion that the Grievant’s explanations “did not make sense” (Tr. p.
55). Soon after, Mr. Dumandan made a
recommendation to the Company’s corporate Human Resource Office to terminate
the Grievant. It should be noted that the recommendation to terminate was made
without discussing the investigation with the Grievant as Mr. Dumandan told him
he would (Tr. p. 58, 108). The
Cooperate Human Relations Office approved the recommendation and the discharge
was issued on August 19, 2008. A
grievance was filed on August 21 and was processed to this Arbitration.
POSITION OF THE COMPANY
The Company had just cause to discharge the Grievant.
He violated the CBA and Company policy. He was dishonest with his July
31, 2008 time sheet and with his timesheets on previous occasions.
The grievance should be denied.
POSITION OF THE UNION
The Company did not have just
cause to discharge the Grievant. There
was no proof of dishonesty. The
entry on the July 31, 2008 timesheet was an error, a mistake as he explained.
The timesheets for the previous two pay periods showed no proof of
dishonesty. The grievance should be
The just cause standard is essentially a system of fairness and it is
well established that the standard requires that a discharge be supported with
adequate proof of misconduct. Without
proof of misconduct, there can be no just cause for a discharge.
The Company alleged that the Grievant intentionally falsified time
sheets. As proof, the Company cited
the Grievant’s July 31, 2008 timesheet (Jt-5) and the explanations he provided
explaining the time differences on the two spreadsheets prepared by Mr. Dumandan
(C-1 and C-2).
The Grievant was a seven-year employee, a driver with a spotless record.
He had no prior disciplines of any kind.
When he was appointed to the role of Interim Shop Steward, he accepted
the appointment with the awareness and knowledge that, without the expressed
authorization of the Company, he was not entitled to any overtime pay
(Emphasis added). The prohibition
was discussed with the Union President and also discussed with the Company’s
General Manager, Tim Dumandan the first day the Grievant reported to work as the
new Shop Steward (Tr. p. 19, 23). The
prohibition was also known to other employees including those in the Payroll
Office (Tr. p. 24). This feature was
pivotal to the question of whether there was any intent by the Grievant to
The Company’s allegations were not supported by the evidence record.
With respect to the July 31st timesheet, there was no proof of
any intent to defraud the Company. The
Company’s contention that his explanation for the four hours at issue
consisted of “shifting explanations” (Company Brief p. 5) was not supported
by the evidence record. When
Mr. Dumandan asked him for an explanation for the entries on the July 31st
timesheet, the Grievant was not “shifting” with his explanation.
He was upfront and forthright with his explanation that the entry was a
mistake, that he had, on that day, arrived for work, not at 8:00 a.m. but at
noon. He admitted his mistake,
explained it, and apologized (Tr. p. 26, 101-102).
Mr. Dumandan testified that he felt the Grievant had not taken the matter
seriously enough and that his apology was lacking.
His testimony, on cross examination, was that the Grievant’s demeanor
didn’t offer anything else, that it was not enough of an apology.
I expected him to say “I’m really sorry, I made a mistake, or
something like that” (Tr. pp. 102-103). The
evidence record did not support the Company’s allegation that the July 31,
2009 timesheet was proof of the Grievant’s intent to falsify the timesheet.
However, based on Mr. Dumandan’s belief that the grievant had not taken
the matter seriously enough, he decided to conduct an investigation and look at
the Grievant’s timesheet for the two prior pay periods for a pattern of false
entries on his timesheets. Mr.
Dumandan looked at the Grievant’s timesheets and found that there were some
time differences between his arrival time in the yard and his reporting time to
the Dispatcher. The time differences
ranged from six minutes to 25 minutes.
Another element of the just cause standard is the requirement that the
Company make a full, fair and objective investigation to determine if the
charged individual is in fact guilty of the offense or breach.
When discharge is penalty, the Company bears the responsibility of having
considered any and all facts, from whatever source, that could have an influence
on the decision to discharge. The Company, however, failed to meet that
responsibility because the investigation was flawed.
Mr. Dumandan constructed two spreadsheets (C-1 and C-2) and instructed
the Grievant to provide explanations for each day explaining the time
differences on each day between his arrival time in the yard and the time he
reported to the Dispatcher. After
reviewing the Grievant’s explanations on the spreadsheets, he concluded that the explanations for the discrepancies did not make
sense and that the Grievant was being dishonest (Tr. p. 55).
(Emphasis added). Shortly
after his review of the spreadsheets, Mr. Dumandan made a recommendation to
Corporate Human Relations to terminate the Grievant (Tr. p. 58).
Again, Mr. Dumandan’s recommendation to terminate was made without
discussing the explanations on the spreadsheets with the Grievant (Tr. p.
The timesheets for the previous pay periods did not provide proof that
the Grievant falsified any of his timesheets.
The “investigation” conducted by the Company was not a fair
investigation. The spreadsheets used by the Company were not reliable
investigative instruments. On
spreadsheet C-1, Mr. Dumandan made five corrections after the fact. More
importantly, the explanations provided the Grievant on the spreadsheets was not
evidence of intent to falsify. The
explanations were based on stale information of events that occurred many days
prior. For each timesheet showing a
difference in the arrival time at the yard and time the Grievant reported to the
Dispatcher, an explanation showing the reason the time differences was written
on the bottom of the timesheets. Those
explanations were not stale and were accepted by the Dispatcher at the time.
Also, the timesheets for the two hold-down drivers, Glen Turner and
Winifred Cooper, showed the same or similar time differences as the Grievant’s
timesheets for the same Run (U-1; Tr. p.148).
The investigation itself was flawed.
The spreadsheets did not constitute a reliable investigative instrument.
Mr. Dumandan used the Grievant’s explanations on the spreadsheets to
make his determination to recommendation to terminate the Grievant.
Mr. Dumandan, on direct examination, testified that the explanations, the
discrepancies “did not make sense” (Tr. p. 55).
Not making sense is not adequate proof that can support a decision to
The Company also alleged that the Grievant took too much time beyond the
five minutes scheduled for post-trip inspections.
However, nothing was placed into the evidence record to show that
difference in the times after his arrival in the yard and the times the Grievant
reported to the Dispatcher were an attempt to falsify timesheets.
Where the Dispatcher found the expected time of arrival and the clock in
the Dispatcher’s office to be the same or close to the same, the Dispatcher
signed off on the timesheet (Tr. p 52).
Therefore, for the reasons discussed in the foregoing, the Arbitrator’s
conclusion is that there was no proof of any intent by the Grievant to falsify
timesheets and that the Company did not have just cause terminate him from his
The Company did not have just cause to terminate Rosalio Torres-Mora.
The Company is directed to reinstate the Grievant to his previous
position, to make him whole for all lost income (less other income earned) with
interest and to make him whole for all lost benefits.
The Arbitrator retains jurisdiction over any dispute that may arise over
the interpretation or implementation of the remedy.
Date: January 26, 2009
C. ALLEN POOL, Arbitrator
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028