Title: Regional Transportation District and Amalgamated Transit Union
Date: July 1, 2007
Arbitrator:  Donald E. Olson, Jr.
Citation: 2007 NAC 120

___________________________________

In the Matter of an Arbitration

          between

  REGIONAL TRANSPORTATION DISTRICT

                     the District,          Arbitration  
                                      FMCS No.060418-55450-7

           and

  AMALGAMATED TRANSIT UNION

  DIVISION 1001

                     the Union,

__________________________________

Grievant:  Mr. XXX

Issue:  Discharge

                     ARBITRATION AWARD

                           OF

                     DONALD E. OLSON, JR.

Appearances:

For ATU Division 1001                 Mr. William B. Jones, Esq.

For Regional Transportation District  Mr. Rolf G.Asphaug, Esq.

                    OPINION OF THE ARBITRATOR

PROCEDURAL MATTERS

    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 briefs.

The 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.

ISSUE(S)

     The stipulated issue(s) are:

          Was the Grievant terminated for proper cause?  
          If not, what is an appropriate remedy?

                      STIPULATIONS

          In response to concerns raised about the
          introduction of certain documents, the  
          parties stipulated that counseling memos and  
          performance evaluations are part of an  
          employee’s overall record but are not considered  
          as discipline.  Further, the parties agreed  
          that the Grievant had previously alleged that  
          he suffered radiation poisoning at work, but  
          that the District properly and thoroughly  
          investigated that complaint and found no basis  
          for it—as a result, the District agreed to  
          withdraw its Exhibits FF, HH, II, and JJ.  
         

RELEVANT PROVSIONS OF THE 2006-2009 COLLECTIVE BARGAINING AGREEMENT

                     ARTICLE 1 – SECTION 5
                     Rights of Management

          The management of the System and he direction  
          of the working forces is the vested exclusively  
          in the Employer.  The Employer shall continue  
          to have all rights customarily reserved to  
          management, including but not limited to the right  
          to hire, promote, suspend, discipline, or discharge  
          for proper cause; the right to relieve employees  
          from duty because of reduction in work force or  
          other proper reasons; the right to schedule hours  
          and require overtime work the right to assign  
          work to locations; the right to create positions;  
          the right to determine the number of classifications  
          and manning of classifications; staffing levels;  
          and the right to establish rules pertaining to the  
          operation of the System. The above-mentioned  
          management right are not to interpreted as being  
          all inclusive, but merely indicate the type of  
          rights, which belong to and are inherent in 
          management.  It is understood that any of the  
          rights, power, or authority the Employer had prior  
          to the signing of this Agreement are retained by  
          the Employer, except those specifically abridged  
          by this Agreement.

                    ARTICLE 1 – SECTION 9

                         DISCIPLINE

          (a)         The right to discipline is vested in the  
          Employer, however, the Employer agrees to fully  
          recognize and meet with the Union on any and all  
          questions, grievances and differences that may  
          arise between the parties.  Informal corrective  
          actions such as verbal or written counseling  
          shall not be considered disciplinary action.

          (b)         Entries shall not be placed against the  
          discipline record of any employee until the  
          employee has been give the right of a hearing to  
          respond to the charge(s) and the charge(s) has  
          been dispositioned.  When an employee is called  
          in to the office on an issue that might result in  
          disciplinary action, the employee shall cooperate  
          in the investigation to the fullest extent  
          possible.  The employee shall answer to such  
          specific charge or charges only.  An employee and/  
          or an agent of the employee so designated in  
          writing shall be authorized to inspect the  
          employee’s personnel file in the presence of the  
          designated representative of the Employer at a  
          pre-arranged time and place consistent with the  
          employee’s work duties.  In determining whether  
          or not an employee is “at fault” for a current  
          charge, the Employer may consider the employee’s  
          record from the prior one (1) year, or two (2)  
          years in the case of substance abuse violations.  
          If the Employer determines that the employee was  
          “at fault” for the charge, and if the range of  
          possible penalties includes termination, the  
          Employer shall consider the entire record in  
          determining an appropriate remedy.

RELEVANT PROVISIONS OF THE PERFORMANCE CODE INFRACTIONS
          V1.Harassing, Indecent, Lewd, or Vulgar Conduct

          The District will not tolerate harassing, indecent,  
          lewd, or vulgar conduct by its employees such as  
          the use of obscene language, profane gestures, 
          verbal abuse, or other similar actions that may  
          offend others, including but not limited to racial,  
          ethnic, sexual, disability or other slurs, sexual  
          innuendo, or any form of harassment.  The District  
          will not tolerate any type of sexual, racial,  
          ethnic, disability-based, religious, gender-based,  
          or other harassment of employee or the public.  Any  
          sexual misconduct or sexual activity by any employee  
          while on duty or on District property/equipment is  
          prohibited.  Vulgar conduct such as an employee  
          relieving ‘the call of nature’ on or near RTD  
          property or equipment or in any public place other  
          than a restroom is also prohibited.  Any violation  
          of District policies pertaining to equal employment  
          opportunity and/or harassment is a violation of this 
          article. Any violation of this Rule may be a Class  
          A infraction, and any employee violating this Rule  
          may be subject to termination for the first offense  
          depending on the severity of the misconduct.

          V11, Contempt of Authority – Insubordination

          Any person subject to this code shall be found in  
          violation of this Rule if he or she refuses to work  
          under the agreement in effect between the District  
          and Union or refuses to obey a proper instruction  
          from management.

          Example of a Class C infraction are when [an]  
          employee fails to seek or obey a supervisor’s  
          instructions including but not limited to written  
          directives, bulletins, etc. 

          Examples of a Class B infraction are when an  
          employee responds insubordinately, or fails to  
          respond, to a proper directive or instruction from  
          a supervisor in the execution of his office or when  
          employee refuses to pull a mechanically-safe  
          vehicle out of the garage or pulls a bus in without  
          proper authority.

          Examples of a Class A infraction are when an  
          employee incites or participates in any refusal  
          to work in contravention of the collective  
          bargaining agreement then in effect and/or  
          repeatedly responds insubordinately or fails to  
          respond to proper directive.

BACKGROUND

     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 6^th 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 10^th and Osage Light Rail station.  November 17^th was opening day for the District’s new Southeast Light Rail line.

The 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 10^th 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 District’s charges.

Once 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.

DISCUSSION

     This arbitrator has carefully reviewed the entire evidentiary file, pertinent testimony, and the parties’ post-hearing briefs, as well as cited arbitration decisions.

     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 28^th, 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 10^th 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.

Normally, 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 10^th 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.”

There 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  
           relationship that an employee must conform  
           to certain well known, commonly accepted
           standards of reasonable discipline and conduct  
           while engaged in his work at the plant.  
           Among these obligations are the duty to perform  
           his work as directed. . . . An industrial plant  
           is a place for the production of goods and the  
           performance of work.  While it is not a  
           military barracks, neither is it a place for  
           barroom conduct, indifference to a supervisor’s  
           instructions, or childish outbursts of defiant  
           insubordination accompanied by abusive and  
           profane language.”

     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.

AWARD

     The grievance is denied.

Dated this 1^st day of July 2007.  
Tacoma, Washington

________________________________  
Donald E. Olson, Jr., Arbitrator

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