A Firm Client Prevails in Important Labor Arbitration, Invoking Management Discretion

Recently, the firm was fortunate to represent Metropolitan Transit in a double arbitration over two Final Records of Warning for failure of a Light Rail Operator to use his horn and/or bell on two separate occasions.  We are happy to announce that we assisted Metro Transit in emerging victorious in both cases.  See the attached PDF file for the award here: Arbitration Award Mohamud Ahmed

In the first case, the operator, during one cross-town trip from Minneapolis to St. Paul, failed to use his bell at 90 separate points during the trip, and failed to use his bell at least two times it was required. While one would think it’s a clear safety violation for an operator to ignore the most basic of duties such as ringing his bell.  The Union argued, however, that no notice was given to the grievant that he could receive such a strict punishment for such an error.

In denying the union’s grievance, Arbitrator Altman found the severity of the grievant’s failure to safely operate his train outweighed any argument the union could produce, as it represented a major safety violation that put civilians’ lives at risk.  After all, the electric light rail trains operate quietly, and the horn and bell help alert people in the area that that train might be moving towards them.  Importantly, the arbitrator lauded Metropolitan Transit for its various efforts to ensure the operators safely operate their trains.

In the second grievance the operator was informed several times about a malfunctioning signal along his route, and a supervisor placed his vehicle at the malfunctioning signal to alert operators of the malfunction.   Despite these warnings, the grievant twice failed to follow the appropriate procedure for passing a malfunctioning signal, including sounding his horn to alert folks that the train was moving.

At times, in these situations, operators would be issued a Training and Observation warning by a supervisor and sent on their way.  However, after considering the operator’s very recent disciplinary history, the operator was again issued a final record of warning.  With this higher level of discipline, the grievant was taken out of train operations. This elevated discipline was the challenge facing the employer as it attempted to defend its decision.

In upholding the discipline, the arbitrator again found that the employer has the discretion to consider past acts in issuing discipline for new misconduct under the applicable employer policies.  As the previous act was so similar to the final error, the employer had the authority to depart from previously imposed disciplines given to other employees and issue a final record of warning to this grievant.

This last concept is something that should be emphasized when advising on discipline: no discipline should be viewed in isolation.  Past bad acts of employees, especially when the are very similar, should be considered when coming up with the appropriate discipline for new misconduct.  Put another way, an employer can issue what it believes to be the appropriate discipline based on an employee’s disciplinary record.

We were happy to get the results we did.  The presentation of this case included a site visit to the cab of a Light Rail Train so that the arbitrator could see how easy it was to operate the train’s horn and bell. We worked hard with a number of employer witnesses to ensure that the most persuasive testimony was emphasized, and to make certain that all witnesses were ready for the union’s aggressive cross-examination.

Representing employers in labor arbitration is an important part of our practice.  If you need any assistance getting the results you want in arbitration, look to the Wiley Law Office to work hard for you.