BEFORE THE ARBITRATOR

In the Matter of the Arbitration of a Dispute Between METROPOLITAN COUNCIL/ METRO TRANSIT DIVISION BMS Case No. 20-PA-1018

(Vernon Miller Termination) and AMALGAMATED TRANSIT UNION LOCAL UNION NO. 1005

Appearances:

Ms. Emily Marshall, Esq., Miller, O’Brien, Jensen P.A., 120 South Sixth Street, Suite 2400, Minneapolis, Minnesota 55402, on behalf of the Union and the Grievant.

Mr. Benjamin Reber, Esq., Wiley Law Office P.C., 5200 Wilson Road, Edina, Minnesota 55424, on behalf of the Company.

ARBITRATION AWARD

Pursuant to Article 5 of the 2017-2020 collective bargaining agreement between the captioned parties, the parties jointly selected Arbitrator Sharon A. Gallagher through the Minnesota Board of Mediation Services, to hear and resolve a dispute between them regarding the discharge of Bus Operator Vernon Miller. The parties jointly agreed to hold the hearing at one of the Company’s facilities in St. Paul, Minnesota on March 25, 2020. However, that date was cancelled due to the closure of the states of Minnesota and Wisconsin because of the Coronavirus outbreak. The parties then agreed to hold the hearing at the same Metro Transit facility in St. Paul on May 29, 2020.

On May 28, 2020, Metro Transit shut down all of its services and facilities due to unrest and protests in Minneapolis/St. Paul following the death of Mr. George Floyd. However, the parties agreed to hold the hearing herein by video conference, as scheduled, on May 29th.

The hearing was held from 9:30 a.m. until after 6:00 p.m. on May 29th, with minimal breaks on WebEx. The Company submitted ten exhibits. The Union submitted ten exhibits. 1

All exhibits were admitted without objection. The collective bargaining agreement was Joint Exhibit 1 (Company Exhs. 1-001 to 027); the grievance documents (Co. Exhs. 2-001 to 006) became Joint Exhibit 2; and Joint Exhibit 3, “Training Rule Books and Manuals,” is the same as Company Exhibits 8-001 to -013 and 8-014 to 037.

Five witnesses testified. All were first sworn on oath or affirmation by the Arbitrator. No procedural or substantive issues were raised. No stenographic transcript of the proceedings was taken so no official record of the proceedings exists.

The parties had a full and fair opportunity to present testimonial and documentary evidence and to make arguments and objections. The parties made opening statements. The parties waived oral closings. They agreed to submit written briefs to the Arbitrator by 5:00 p.m. on June 19th, and that the Arbitrator would then exchange the briefs for the parties by email. The parties waived the right to file reply briefs.

The Arbitrator received the parties’ briefs by June 19, 2020, and exchanged them,. The Arbitrator received the Company’s precedents by regular mail as she had requested, on June 22, 2020, whereupon the record herein was closed.

STIPULATED ISSUES

The parties stipulated that the Arbitrator should determine the following issues:

1) Whether the termination of Vernon Miller following his fourth accident in a rolling three-year period was just and merited?

2) If so, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

. . .

ARTICLE 4 MANAGEMENT PREROGATIVES The ATU recognizes that all matters pertaining to the conduct and operation of the business are vested in Metro Transit and agrees that the following matters specifically mentioned are a function of the management of the business,

Company Exhibit 10 – 009-010 was submitted after the hearing by agreement of the parties. The Exhibit showed 1

an e-mail and two pictures of bus panels discussed at the 2019 RTK training by Jerry Larsen, retired MT Safety Spe-cialist. Larsen did not testify herein.

including, without intent to exclude things of a similar nature not specified, the type and amount of equipment, machinery and other facilities to be used; the number of employees required on any work in any department; the routes and schedules of its buses; the standard of ability, performance and physical fitness of its employees and rules and regulations requisite to safety. Metro Transit shall not be required to submit such matters to the Board of Arbitration provided by Article 13.

As to the standard of ability, performance and physical fitness of its employees above mentioned Metro Transit agrees to submit to the Board of Arbitration only the claim by the ATU of discrimination against employees in the same group in the application of these standards.

It is understood and agreed, however, that in all such matters Metro Transit will consider, insofar as practicable, the convenience and comfort of its employees.

. . .

ARTICLE 5 GRIEVANCE PROCEDURE Section 1. Metro Transit reserves to itself, and this Agreement shall not be construed as in any way interfering with or limiting, its right to discipline its employees, but Metro Transit agrees that such discipline shall be just and merited.

Section 2. No employee shall be suspended without pay or discharged until the employee’s immediate superiors have made a full investigation of the charges against that employee and shall have obtained the approval of the applicable department head. No discipline, excepting discharge without reinstatement, shall be administered to any employee that shall permanently impair the employee’s seniority rights. When contemplating disciplinary action, Metro Transit shall not give consideration to adverse entries on an employee’s disciplinary record involving incidents occurring more than thirty-six (36) months prior to the date of the incident which gives rise to the contemplated discipline. Prior to a suspension of more than two (2) days, the ATU must be notified. If a case of discipline involves suspension or discharge of an employee, and such employee is not found sufficiently at fault to warrant such suspension or discharge, the employee shall then be restored to their former place in the service of Metro Transit with continuous seniority rights and shall be paid for lost time at the regular rate of pay.

. . .

ARTICLE 11

WORK RULES AND PRACTICES All practices and agreements governing employees enforced by Metro Transit or its predecessors, not in conflict with nor changed by the provisions of this Agreement, may be changed subject to the following conditions:

(a) Work rules and/or practices may not be in conflict with the contract; (b) Metro Transit must meet and confer with the ATU prior to making any

such changes or new work rules; (c) New work rules and/or practices must be reasonable; (d) The Metro Transit will furnish the ATU with a copy of all bulletins or

orders changing any such rules, regulations and practices; (e) Work rules and/or practices are subject to the Grievance Procedure.

. . .

RELEVANT RULE BOOK/GUIDE PROVISIONS

1. INTRODUCTION TO METRO TRANSIT

Metro Transit exists for one reason: to serve the public’s transit needs. As a Metro Transit bus operator, you are in a very powerful position. The kind of treatment you show those who ride our buses has enormous influence on people’s decisions whether to ride public transit or use their own means of transportation.

You are expected to provide friendly, courteous service to the public. Driving skillfully and safely, providing on-time service, greeting those who ride your bus, responding courteously to their inquiries and requests, and providing accurate information in response to their questions about service are just a few of the ways you can effectively serve our customers.

Performing your job in these ways offers both short- and long-term benefits. In the short term, most customers who are treated with dignity and respect will return the favor. In the long term, courteous service helps build a generally positive image of Metro Transit and its bus operators. Many people will get the message and want to use our service.

. . .

11. PRE-TRIP INSPECTION/START-UP

The purpose of pre-trip inspection is to ensure safe operation and comfortable service. Identifying defects can prevent bus failures. Report any damage or defects by completing a bus operator’s bad order (BO) slip. If, in your

judgment, the defect makes the bus unsafe to drive, call dispatch via the bay phone. Immediately Use the following list to prepare your bus for service:

START-UP

• Emergency brake is on • Wabasto heater switch is off • Transmission in neutral • Turn master switch to night run • Press start (only if air pressure below 90 PSU) • Turn on interior lights and 4-ways • Turn on chime • Set overhead sign • Open rear door/green light on • Log on to the MDT

EXTERIOR INSPECTION

• Check destination signs • Check lights: head, marker, brake, 4-ways • Check doors, door lights, stairwells • Check body for damage, including mirrors • Sound tires

• Check wheels for missing or loose lug nuts. Shiny metal around any lug nut or variance in thread beyond the lug nuts indicates a serious problem. USE A BAY PHONE TO CALL DISPATCH FOR ASSISTANCE

• Check fuel cap • Check for leaking fluid under the bus • Check coolant using sight glass only. USE A BAY PHONE TO CALL

FOR HELP IF LOW • Close rear door and check tail lights • Verify the bike rack is securely latched in the upright position

INTERIOR INSPECTION

• Check and report damage, including graffiti • Check mobility device securement straps • Check chime and "stop requested" light • Check fire extinguisher – needle in green zone, tagged, and sealed • Check for three (3) emergency triangles

• Check for ice scraper (seasonal) • Check microphone, adjust volume • Check heater, defrosters, wipers, and A/C • Test lamp indicator • Check horn operation • Log in to farebox, issue a test transfer, check TRiM unit • Check seatbelt • Adjust mirrors • Check for air pressure for 90 PSI minimum • Follow the procedures to release brakes, if necessary, before moving the

bus. If assigned an articulated bus, pull forward 4’, back up 1’, release brakes.

• Pull bus outside of garage to minimize exhaust pollution in the bays • Cycle the lift/ramp prior to pull-out

. . .

14-22 SAFE OPERATIONS; GENERAL TRAFFIC PRINCIPLES

14 SAFETY IS THE FIRST PRIORITY

Remember the Five Safety Keys. Following these driving rules at all times will give you the "space cushion" you need for operating buses safely in all conditions.

1. Aim high in steering. 2. Get the big picture. 3. Keep your eyes moving. 4. Leave yourself an out. 5. Make sure they see you.

. . .

97 PERSONNEL POLICIES

The Bus Operator’s Rule Book and Guide covers rules, tips, and hints that affect your actual performance as an operator at the garage and on the road. In addition to Metro Transit policy, you are expected to follow state and federal laws and procedures as well. Memos and bulletins are posted at all garages. The Metro Transit/ATU labor agreement is also available at the garage. Bus operators receive policy statements, including the Absenteeism policy, the Operating policy, the Drug and Alcohol policy, the Commercial Motor Vehicle Act and the Disability Management policy. All changes to operating and attendance policy will be communicated in writing and will either be posted or personally issued.

You are responsible for following all policies and rules and expected to exercise good judgment while on duty.

. . .

RELEVANT TRAINING MANUAL PROVISIONS

Chapter 6: Preparing Bus for Service

6.1 Bus Inspection

A bus inspection is a mandatory procedure to ensure passenger safety and reliable operation.

Pre-trip

Bus inspection begins at pre-trip to identify defects before pull-out.

The inspection should be done the same way each time so the operator will be less likely to forget any of the steps.

If defects are found on the bus, the operator is required to complete a Service Request Form. This report lets the mechanical department know that the vehicle needs repairs.

If the operator finds any defects that would make the bus unsafe for service, he/she should call a dispatcher on a bay phone.

Dispatch may:

• Assign a different bus • Send a mechanic to help • Instruct operator how to proceed

If defects do not affect safety:

• Fill out a Service Request Form • Park the bus in designated area at pull-in • Or, inform relief operator of defect

During Trip

Continue to be aware of defects that can occur while driving.

Watch for warning lights and air pressure gauge for signs of trouble. Be alert and use senses (look, listen, smell, feel) to check for defects. Complete a Driver Report form if any defects are found.

End of Trip

Check critical interior and exterior items at each terminal:

• Lost and found • Suspicious packages • Graffiti, litter, and spills • Tires, rims, and lug nuts • Lights • Damage

. . .

Chapter 7: Basic Control of Bus

. . .

Mirror Usage

The operator must use mirrors correctly by checking them often and understanding what they see.

Check quickly – look back and forth between mirrors and the road ahead. Do not focus on any mirror for too long; the operator will travel quite a distance without knowing what is happening ahead.

It is important to know what is going on behind and to the sides of the bus. The operator needs to make regular checks of mirrors to be aware of traffic and to check clearances around the bus.

Check the mirrors for vehicles on either side and in back of the bus. In an emergency, the operator may need to know whether they can make a quick lane change. Use mirrors to spot vehicles attempting to pass the bus.

There are "blind spots" that the mirrors cannot show the operator. Check mirrors regularly to know whether other vehicles are around the bus and to see if they move into blind spots.

Use the mirrors to keep an eye on the tires. It is one way to spot a tire fire.

Some customers may ride with an arm out of a window or even hang their head out. Use mirrors to check for this dangerous practice, especially in areas of tight clearances.

Special situations require more than regular mirror checks; these are:

• Lane changes • Turns • Merges • Reduced Clearances

Right Mirrors

• The operator needs to check right mirror to make sure no one is alongside or about to pass. Check mirrors:

• Before changing lanes to make sure there is enough room • After has signaled – to check that no one has moved out of blind spot; • Just after starting the lane change – double-check that the path is clear; • After changing lanes

Within turns, check mirrors to make sure the rear corner of the bus will not hit anything.

When merging, use mirrors to make sure the gap in traffic is large enough for the bus to enter safely.

While driving with reduced clearances, check mirrors constantly to make sure the bus has enough room.

Keep Your Eyes Moving

• Remember, keep your eyes moving. Repeat this pattern every five to eight seconds:

• Look in the left mirror • Look in the overhead mirror • Look in the right mirror • Look straight ahead through the windshield

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BACKGROUND

Metro Transit (MT) is an operating division of the Metropolitan Council. It provides about 95% of the 73 million commuter trips taken in the seven-county area of the Twin Cities, offering Light Rail, Northstar Commuter Rail, as well as bus services (Co. Exh. 8-015). MT, is a common carrier, so it relies heavily on state (60%) and federal (5%) funds, and self-generating sources, to finance its operations and capital programs. As such, MT currently collects just 35% of its budget from fares (Co. Exh. 8-015).

MT has five garages, two Light Rail facilities, and one Heavy Rail facility. MT currently employs over 1500 driver/operators and 468 mechanics to provide safe and efficient transportation to Twin Cities riders. It is undisputed that safety is MT’s number one priority and this goal is expressed in MT’s Operator’s Rules/Guidebook (Co. Exh. 8-01388), its Training Manuals (Co. Exh. 8-002) and Standard Operating Procedures (Co. Exhs. 5-001, 5-006). Employees receive copies of these documents.

Employees also receive orientation, annual and assigned trainings in classes, hands-on driving sessions and other trainings. They receive and are expected to review and know the "Smith System Five Safety Keys". The Five Keys, referred to in Chapter 9 of Metro Transit’s "Operator’s Rules and Guidebook" (Co. Exh. 8-023 to 8-025), are as follows:

1. Aim High In Steering 2. Get The Big Picture 3. Keep Your Eyes Moving 4. Leave Yourself An Out 5. Make Sure They See You.

(Co. Exh. 6-002)

Key #2 specifically states that drivers should ". . .look to the rear of the bus by checking a mirror every 5 to 8 seconds" (Co. Exh. 8-024). Key #3 states that drivers should:

• Move eyes every 2 seconds by making quick glances • Avoid staring to maintain peripheral vision and keep mind alert • Quickly focus on objects that are near and far, left and right. Don’t fixate

on one thing • Look left, then right, then left again before all intersections

(Co. Exh. 8-025)

Also, at orientation as well as annually, OSHA requires that operators receive Right to Know (RTK) Training, which includes training regarding any hazardous chemicals they may encounter, as well as other safety issues inherent in their jobs and any new safety issues to be

addressed. In the 2019 RTK, Safety Supervisor Larsen (now retired) discussed two slides showing the rear passenger-side panel on buses with language as follows:

Part of our pre-trip responsibility is to ensure the exterior maintenance access panels are secure. Grab and shake them.

When open, the rear panel sticks out 33" on a 40’ (sic) Foot Bus and 38" on an Arctic.

(Co. Exh. 10--010)

It is undisputed that at the 2018 RTK, SS Larsen discussed the issue of panels opening up unexpectedly also.

MT’s 2005 Operating Policy, currently in force, contains Procedure 4-7d which "is the primary policy for employee assessment" (Co. Exh. 5-001). Section 4-7d contains systems for recognizing and rewarding superior performance, for evaluating/re-training employees and for disciplining employees (Co. Exh. 5-005-006). The Policy

"is designed to promote consistency and equal treatment. Managers have discretion to depart from the Policy to take into account mitigating and aggravating factors. . . "

(Co. Exh. 5-001).

The Bus Operator’s Training Manual (Chapter 10.1) defines Accidents and when an accident should or should not be charged against an Operator, as follows:

Accident

An accident is an unplanned and unwarranted event. These events are considered accidents:

• Collisions or contact with other vehicles • Collisions or contact with objects • Collisions or contact with pedestrians or persons on bicycles • Passenger falls or injuries on bus

Responsible Accident

An accident will be considered responsible if the accident could have been prevented by the operator. Responsible accidents are recorded on the operator’s safety record.

Non-Responsible Accident

A non-responsible accident is one that was unavoidable, due to events beyond the operator’s control

(Co. Exh. 8-027)

Vernon Miller was hired as a Bus Operator at MT on February 25, 2014. He had been assigned initially to drive part-time, but after approximately 3 to 6 months, he was invited to become a full-time operator and did so.

As Article 5, Section 2 prohibits MT from considering any disciplinary incidents prior to 36 months before the incident under consideration, the only prior disciplinary actions against Miller that are relevant and material to this case are the following:

1) 2/08/18: Co. Exh. 7-009 – Miller hit "(a) barricade sign blocking most of the right lane out in the street" as he drove to avoid another bus turning left in front of him. Damage: cracked passenger-side bus window above rear wheel. Action: 4 hours 1–on-1 training (no grievance filed).

2) 2/19/19: Co. Exh. 7-020 – Miller hit a parked car as he left the bus garage – "the car was sticking out into the lane of traffic, due to snow banks.” Damage: Scuff marks on rear right side of bus; broken mirror on car. Action: "Safety Keys" refresher. (First step grievance filed, dropped).

3) 4/10/19: Co. Exh. 7-038 – Miller made an illegal left turn and hit a car turning left in front of him. Damage: Scrapes and scratches on curbside body of bus from car contacting it. Action: 8 hours 1–on-1 training with focus on "Safety Keys" and decisions and with a ride check (First step grievance filed, dropped).

At all times relevant to this case, Mr. Yang Chang was the Assistant Transportation Manager at the East Metro Facility in St. Paul, MN, the bus garage out of which Miller was assigned and Ms. Christy Bailey was Director of Bus Operation for MT. Mr. Yang made the initial recommendation to discharge Miller after he had a fourth accident. Ms. Bailey made the final decision to discharge Miller (the subject of this case) on May 8, 2019.

FACTS

On May 8th, Miller was assigned as a relief driver on Route 54. Miller arrived 10 minutes early, as required for relief drivers. Miller started at 11:14 a.m. He walked around the bus, looked at the outside of the bus and checked the tires. He talked to the driver who told him

there had been no problems with the bus on her trip. Miller went to the bathroom. He then logged into MTV, changed the farebox, adjusted the seat and mirrors to fit himself, put on his seatbelt, checked the sign and the blinkers, looked for last-minute runners trying to catch the bus, and checked his mirrors as required before pulling out, and he began his route.

On May 8th, Miller had two layovers on Route 54 – one at the Mall of America and the other at Maplewood Mall. Miller stated that he usually does not have a lot of time at the Mall of America stop, but that at Maplewood he normally has more time. He also stated that drivers have to take bathroom and eating breaks at layover/terminal stops. Miller recalled having 5 to 8 minutes at the Mall of America on May 8th. Also, it was raining, cloudy and windy after he (Miller) made relief on May 8th. He stated that this made it more difficult for him to see images in his mirrors on May 8th.

Miller’s bus had five cameras on it on May 8th but only four of them were working that day. One camera shot above Miller’s head ("Front Door") toward the front door of the bus. A second camera shot from the rear driver’s side corner of the bus ("Rear Camera"). The third camera shot out the front window of the bus ("Windshield"), the driver’s view of the street. The fourth camera shot the "Rear Door" of the bus. The fifth camera, “Front to Back” was n ot working on May 8th. The bus videos showed that it was raining on May 8th.

Close and repeated review by the Undersigned of the "Rear Camera" video showed that the rear panel did not open prior to 14:16:15 (Co. Exh. 9-001). Prior to this point in Miller’s route, one can consistently see the colors and shadows of cars, buildings and light poles through the entire rear window above the panel. The passenger seated next to the rear window above the panel was on his phone and appeared to notice nothing until he looked up just before he rang the bus bell and got off the bus.

On the video, Company Exhibit 9-001, the panel can be seen on the "Rear Camera" through the passenger side window at 14:16:15, but it disappears and can no longer be seen on the "Rear Camera" at 14:16:42. The bus arrives at Maynard Drive at 14:17:33. At 14:17:53, the handle of the panel can be seen on the "Rear Camera" through the window and it remained up as Miller left Maynard Drive after he closed the doors at 14:18:27. At 14:18:43 the panel hits the bus shelter.

Close and repeated review by the Undersigned of Miller’s head movements on his route on the “Front Door” video showed that between 14:16:15 when the panel first comes up and 14:18:43 when the panel hit the bus shelter, Miller moved his head 5 times side to side. We do not know how many times Miller moved his eyes to look in his mirrors during his route because the camera does not detect eye movements.

No passenger witnesses from the bus came forward to be interviewed. None of the cameras on the bus were able to show exactly what Miller could see or what Miller would have seen when he looked in his right mirror. MT did not perform an accident re-creation. As stated

above, the bus videos do not and cannot show where Miller was looking with his eyes while he drove.

It is undisputed that MT had been having trouble with panels flying up on its buses over the years. This was confirmed by witnesses Yang, Bailly and Safety Specialist Tim Bowman. 2

Bailly and Bowman stated that some panels flew up because they were rusted and/or loose.

On the 40-foot buses (like the one that Miller drove on May 8th), the rear panel behind the passenger side rear wheel is 4.5 feet off the ground when fully open. It is 36 inches wide by 6 feet long and is approximately 1/16 to 1/8 inch thick and painted white. It is seen as a small, thin white line in the driver’s passenger-side mirror (Co. Exh. 6-032). There are ¾ inch black straps that hold the panel up when it is open and a black handle at the lower rear of the panel.

Director of Bus Operations Christy Bailey acknowledged that panels popping open has been a problem for some time; that some drivers carry duct tape with them to tape popped panels shut; but MT has not looked into adding bolts to the panels to secure them. Safety Specialist Bowman and Assistant Transportation Manager Yang agreed that panels popping up has been a problem for some time, such that at the 2018-2019 RTKs, Larsen addressed the matter (Co. Exh. 10-009-010).

Grievant Vernon Miller stated that he has tried to always put safety first and that he loved his bus operator job and wants to return to it. He believes he can turn his driving performance around and be a better driver in the future if he is reinstated.

Miller admitted going to the RTK OSHA Training conducted by Safety Specialist Larsen in 2019 and he agreed attendees were shown slides regarding popping panels but Miller did not recall Larsen telling employees to check the panels or how to do so.

Miller stated that when a driver makes relief, he does not have time to check panels and he did not remember management telling drivers to check panels at layovers/terminals. Miller stated that before May 8th, a panel had never popped open on any of his buses.

Miller stated that he held himself accountable for his first 3 accidents and he had vowed to turn things around. Miller asserted that the accident on May 8th was a fluke; that there was heavy rain and wind. In these circumstances, mirrors fog up and it is hard to see. Miller said he did look in his mirrors on May 8th, properly moving his eyes, though he did not "rock and roll". Miller stated that no one in management said drivers could not move their eyes to look in their mirrors. All they said was that to get credit for looking in mirrors when being tested, drivers should move around or "rock and roll" in their seats. Miller stated he was not glancing in his mirrors on May 8th – he was looking. Miller felt he could not see the panel because of the

Bowman had been a Bus Operator for 26 years, a Training Instructor for 8.5 years and a Safety Specialist for the 2

last 4.5 years.

weather. The panel must have come loose because he hit some pothole that day. This was a fluke accident which Miller felt he should not be charged with.

Bowman reviewed the documents prepared by retired Safety Specialist Larsen as well as the bus videos herein. Bowman stated that in his opinion Miller did not move his head enough – he did not check his mirrors enough, every 5 to 8 seconds as required by MT training – and this is why Miller failed to see the open panel on the passenger side and failed to prevent the panel hitting the bus shelter at Maynard Drive on May 8th. Bowman stated he concurred with Safety Specialist Larsen’s description of the accident and his conclusions in his "Safety Summary and Training Recommendations":

. . .

As the bus was pulling out of a bus stop, the curbside rear panel opened and contacted a bus shelter. Maintenance WO# 0005377630 reports multiple parts replace. DSL report# 1224519, SS# 56 reports the operator stated he didn’t know what happened. According to the video the curbside rear panel of the bus contacts a shelter. The panel pops up at St. Paul Ave. at 14:16:15. The bus travels to the next stop, Maynard Dr. Passengers are exiting and entering the bus, traffic light turns to green. The bus pulls away from the bus stop at 14:18:30. The panel is open for 2:15 minutes with the curbside rear panel open. The result is a broken glass shelter panel. The operator never observes the open curbside rear panel. This is the 4th responsible accident in 3 years. Last taken safety keys on 3/21/19.

WHAT COULD THE OPERATOR HAVE DONE DIFFERENTLY TO AVOID THIS ACCIDENT? Check your mirrors minimally every 5-8 seconds. Check all necessary mirrors when leaving a bus stop.

CAP-CORRECTIVE ACTION PLAN: 8 hours of 1 on one training, with focus on the 5 safety keys, making the right decisions and the timing and frequency to checking mirrors when leaving bus stops. Review mirror adjustments. A ride check will be scheduled the week of 6/15/19.

CONCLUSION: Primary Cause: The bus contacts a fixed object. Contributing Factor(s): The operator failed to look in the right mirror to clear the right side of the bus before leaving the bus stop.

. . .

(Co. Exh. 3-012)

Mr. Yang stated that Operators with a fourth accident in a rolling three-year period are discharged, and that this policy is uniformly enforced at MT. Yang stated that as a relief driver, Miller should have inspected the bus, using the Pre-Trip list, at the first terminal stop (Mall of America) or later at his second terminal stop (Maplewood Mall). But Yang admitted that Miller would not have had enough time when he made relief to make a full inspection of the bus. Yang also admitted that nothing in MT’s Relief SOP calls for checking external panels. But Yang insisted that checking compartments as on Company Exhibit 5-026 “The Exterior Inspection Pre-Trip” must be done after relief is made at the driver’s terminal stop. Yang also admitted that drivers are allowed to take bathroom, eating and smoke breaks while at layover/terminal stops. But Yang stated he did not agree with Larsen’s conclusion that the rear panel on Miller’s bus was open for 2 minutes and 15 seconds on May 8th.

Ms. Bailey stated that the reason Miller was discharged was because he did not properly check his mirrors. Bailey stated she did not believe Miller checked his mirrors, as he asserted. She did not see him "rock and roll" in his seat on the bus videos and she did not see him turn his head so she believed he failed to properly check his mirrors. Bailey stated that she believed Miller should have seen the 3/4 inch black straps on the inside of rear access panel in his right-side mirror and thereby known the panel was open. Therefore, Bailey stated, Miller was responsible and was the only one who could have prevented the accident. Bailey stated that MT never does accident re-creations.

Bowman stated he agreed that the rear panel was open on Miller’s bus for 2 minutes and 15 seconds as Larsen stated in his report, although Bowman agreed that the video showed that the wind was fluttering it around and capturing it. Bowman stated that no one sought out the man who was sitting above the panel to interview him as to what he saw, knew or heard that day; and that Larsen never investigated what could be seen of an open panel from the driver’s seat. Bowman admitted that nothing in Larsen’s report indicated Larsen considered that Miller’s sunglasses might have contributed to the accident, and there was no indication in Larsen’s report that he considered the effect of the weather on the accident.

Bowman stated that Code 29 is in effect at MT (U. Exh. 8). Bowman explained that Safety Specialists have traditionally used Code 29 to exempt drivers of accident responsibility for damage to curbside bus mirrors over the years. Code 29 is still used, even though modern mirrors are very different, in cases where only the mirror is damaged.

It is also undisputed that management has the discretion to assess more or less than the progressive discipline detailed in Procedure 4-7d. Management can also consider mitigating or aggravating circumstances in deciding whether to charge responsibility for an accident. Mitigation might include a lack of proper training for the driver, lack of proper documentation, or evidence that a driver was otherwise following procedure. Here, Bowman stated (and Bailey

agreed) that if Miller had been seen moving his head frequently and turning in his seat (rocking and rolling) he might not have been discharged, these being relevant mitigating circumstances. 3

Union President Ryan Timlin (a Bus Operator for 11 years) stated herein that during a layover/terminal stop, drivers have limited responsibilities to inspect their buses – they must check the tires, the lights inside and outside, and look for interior and exterior damage and lost and found. Timlin stated he never did a full Pre-Trip Inspection (which takes a full 10 minutes) at a terminal or layover stop, and he was never trained to do so. Timlin stated drivers sometimes have only 5 minutes or less at layovers.

MT’s SOP states that the following constitute "relief duties" required of operators:

(Co. Exh. 5-015, -016)

Actions: Do This:

4. Perform relief duties. a. Set seat b. Set mirrors c. Log on Smart CoM MDT d. Log on fare box e. Check Go to Card fare set

13. Check exterior of bus. Check for: a. Damage b. Cleanliness c. Graffiti d. Correct destination sign

14. Sound all tires with hammer.

15. Visually inspect lug nuts.

16. Check exterior lights and markers

17. Write up any new mechanical defects you discover.

I have tried, in vain, to make sense of Company Exhibits 8-033 through 8-037, but I cannot. Safety Specialist 3

Bowman stated these documents came from the Minnesota Drivers’ License Manual. I must reject them as com-pletely unhelpful here for the following reasons. First, they are out of order and disjointed, coming from Sections 2, 4 and 10 of the Manual. Counsel failed to ask Miller herein whether Miller had ever seen or used them. Bowman stated that MT employees are tested on this material for their CDL’s at hire. But he admitted that he (Bowman) in-serted the instructing bubbles into the pages for this hearing – and that MT employees do not see the bubbles. Final-ly, it appears to me that most of the material concerns pre-trip checks, not layover/terminal or relief checks. In fact, layover and relief checks of buses are not mentioned in these pages. Therefore, Company Exhibits 8-033 through 8-037 are rejected.

Timlin also stated that even when a driver does everything he/she is trained to do, there is still a chance of having an accident. – The Smith "Five Keys" do not make a driver accident-proof. But adhering to them makes it less likely drivers will have accidents.

Timlin stated that he has had panels pop up on his buses several times. The first time, it was the left front panel and he saw it and was able to force it down with his hand. Timlin stated he never had a rear corner panel pop up on him. Timlin stated that these are very hard to see because the panels are so thin and the drivers have so much to monitor on the bus. Timlin stated that on May 8, 2019, Miller’s panel was going up and down and that it was a cloudy, rainy day which made the panel even harder to see.

Timlin stated that the Union took Miller’s grievance to arbitration because it was a freak accident that could happen to anyone; that because it was a cloudy and rainy day, it was harder for Miller to see the rear panel; and that Miller’s rear panel was going up and down on May 8th. For these reasons Timlin believed that Miller should not have been held responsible for the May 8th accident.

It is undisputed that under Procedure 4-7d, Miller was terminated on June 5, 2019 for having a fourth chargeable accident and that MT properly and timely processed his termination. It is also undisputed that the grievance, filed on June 5, 2019, was properly and timely processed to arbitration before the Undersigned.

POSITIONS OF THE PARTIES

Employer

Metro Transit argued that Grievant Vernon Miller was provided "ample training at the beginning of his career, and continuous training on the safe operation of buses throughout his employment", and yet he was, from February, 2018 to May, 2019 "involved in four responsible accidents" (Er. Br., p. 1). Therefore, "it would be contrary to policy, irresponsible and unsafe to return the Grievant to duty" and he must remain terminated because MT proved that Miller "failed to abide by his training and standard operating procedure" (Er. Br., p. 2).

MT urged that it is undisputed that safety is its first priority. It noted that much of the record in this case is taken up with MT safety policies and Standard Operating Procedures. And MT pointed out that the Union stipulated that Miller had been "trained in all aspects of the proper operation of a Metro Transit bus" (Er. Br., p. 2).

In particular, MT argued that the Five Safety Keys of the Smith System (Key #3), on which Miller and all MT operators have been trained and re-trained, required Miller to "keep his eyes moving". MT argued that Miller failed to do this – that he did not check his right mirror as thoroughly and frequently as he should have. MT also argued that Company Exhibit 5-008

through 012 showed that Miller failed to check his mirrors "14 separate times". MT contended 4

that Miller also failed to deliberately look at his mirrors for obstructions/hazards and that he failed to "rock and roll" in his seat to look fully into his mirrors. These standard operating procedures were not only contained in Company Exhibit 5-008 through 016, but they were testified to by Managers Yang, Bailey and Safety Specialist Bowman, the Company noted.

The Company asserted that the May 8th accident would not have occurred but for Miller’s violation of the MT’s Standard Operating Procedures and the Smith Safety Keys. As Procedure 4-7d has been "consistently and uniformly applied" absent mitigating circumstances, it was properly applied to terminate Miller (Er. Br., p. 3). And because he had three prior responsible accidents on February 8, 2018, February 19, 2019 and April 1, 2019 before the May 8, 2019 accident involved in this case, Miller was well aware of the jeopardy he was in.

MT submitted a timeline list of occurrences shown on the May 8th bus videos submitted herein, Company Exhibit 9-001. The Union neither objected to the Exhibit, nor did it challenge the accuracy of the Exhibit. MT argued, based on the timeline, as follows:

From the time the 18-square foot white metal panel opened (at 2:16:15) to the time of the accident, two minutes and 18 seconds passed. Ex. 9-001. During that period of time, the Grievant exited the St. Paul Avenue bus stop, drove around a half mile down West Seventh Street, pulled into the bus stop at Maynard Drive, allowed passengers to board, and began pulling away from the Maynard Drive shelter. While the panel is not always visible in the rear camera of the bus, it is evidently not closed, as it opens all the way and becomes visible in the rear camera of the bus at 2:17:53, a full 40 seconds before the bus departs the Maynard Drive stop. Id.

After allowing passengers to board, the Grivant pulled away from the Maynard Drive stop and still failed to note the open panel on the side of the bus. The panel hit a bus shelter with such force that it destroyed a glass panel and damaged the open panel on the bus. Through the entire period from when the panel originally opened to when it struck the shelter, the Grievant can be seen turning his head to look at his mirrors only three times. Id. The Grievant cannot be seen checking his right mirror once after he arrives at the Maynard Drive stop. Id.

(Er. Br., pp. 4-5)

Company Exhibits 5-008-012 clearly states that Operators should check their right mirrors three times when 4

entering a bus stop, and four times when leaving one. The total of 14 is reached by adding the requirements for two stops, St. Paul Avenue and Maynard Drive.

MT observed that Miller admitted that he knew about the panel problems and that he had received RTK training in March, 2019 regarding panels popping open on buses. As the Union made no assertions that Safety Specialist Larsen’s investigation was unfair or that the processing of the discharge had violated Miller’s due process rights, the Arbitrator must find the investigation fair and regular.

The only issue remaining here is whether Miller checked his mirrors between the time the panel opened and the time of the accident, as required by MT Standard Operating Procedures and Smith Safety Keys. MT asserted that Miller’s claims herein and in his accident report that he checked his mirrors properly before exiting the Maynard Drive stop should be found incredible. On this point, MT cited Arbitrator Laumeyer’s 2020 award wherein Laumeyer asserted the 5

testimony of witnesses, (such as Miller), who have an interest or stake in the outcome must be scrutinized more carefully than others, such as Safety Specialist Larsen and Safety Specialist Bowman who, MT asserted had "nothing to gain" from finding Miller responsible for the 6

May 8th accident (Er. Br., p. 7).

Furthermore, MT noted that during his Loudermill hearing, Miller made a statement against interest when he told Yang that he would have done things differently and he should have looked more carefully on May 8th. MT noted that later, after Miller lost his job, he changed his tune, insisting that he had done everything he could to avoid the accident.

MT urged that Miller simply could not have properly checked his mirrors. And Miller’s testimony that he was only required to move his eyes to check his mirrors, that someone at MT told him he only had to be seen to move in his seat to check his mirrors when being evaluated as a driver, was contradicted by all of MT’s witnesses, and it was otherwise unsupported by this record.

MT cited and discussed Arbitrator McCoy’s 2011 (BMS Case No. 18-PA-0238) award regarding the discharge of Operator R. McClendon, also submitted with its brief. MT noted that in this case, the Union’s arguments were similar to those herein – that the Grievant had repeatedly checked her mirror before the accident and he must be credited as he was the only witness present on the day of the accident who testified at the hearing. Nonetheless, the Arbitrator found just cause for the discharge because the Grievant admitted he saw vehicles to his left prior to the collision and had he been following the rules he would never have had the accident. MT urged that this case is on point.

MT sent the Laumeyer Award with its brief herein. AFSCME Council 5 and Minnesota Department of Veterans’ 5

Affairs, BMS 19-PA-0310. MT also cited a paper of National Academy of Arbitrators (NAA) member Professor Richard Mittenthal in its brief “Credibility – A Will-O-the-Wisp”, Proceedings of the NAA Annual Meeting, ed., Gershenfeld (BNA Books, 1979). I have read and considered all precedents submitted by the parties in this case.

But Safety Specialist Larsen did not testify in this case.Therefore, MT’s argument applies only to Safety Specialist 6

Bowman and will be addressed in the DISCUSSION section of this Award.

MT urged that the Union’s Code 29 evidence is irrelevant and should be disregarded. First, Code 29 only applies damage to the glass of rear view mirrors. Second, a comparison of the visibility of curbside mirrors to rear panels is not reasonable, in MT’s view.

MT urged the Arbitrator to conclude there was just cause for Miller’s termination. MT noted that he had four accidents in 15 months, that he drove just 6 shifts between his third and fourth accident, and that he had been re-trained on the Smith Safety Keys less than two months prior to the May 8th accident. MT did not believe Miller should be returned to work at MT.

Union

The Union asserted that the Company failed to meet its burden of proof herein – that Miller "reasonably could have avoided the contact between an errant body panel protruding from the rear curbside portion of his bus and a bus shelter on May 8, 2019" (U. Br., p. 1). Because the Company could neither prove that the panel was visible through Miller’s "rain-soaked right mirror" nor did it offer any evidence to disprove Miller’s testimony that he checked his mirrors before he left the Maynard Drive stop and he was unable to see "the thin horizontal panel nearly 40 feet away", the Arbitrator must sustain the grievance and reinstate Miller without loss of seniority or benefits and with "any other appropriate make-whole relief" she orders (U. Br., p. 1).

The Union noted the following important record facts:

1) The driver Miller relieved did not report any problems with the bus to him.

2) Miller drove the bus without incident for three hours before the accident.

3) At the St. Paul Avenue stop (14:16:15), the panel is open but in 27 seconds it disappears from view on the bus video (14:17:30) as the bus travels down the street.

4) At St. Paul Avenue, Miller can be seen turning his head and greeting passengers. Miller is the only witness on the bus on May 8th and he states he looked in his mirror and did not see the panel.

5) At the Maynard Drive stop (14:17:30), the panel is not visible on the bus video, but at 14:17:53 it becomes visible while Miller is greeting passengers and moving his head.

6) Miller states he looked in his mirror and did not see the panel before he pulled out of the Maynard Drive stop.

7) Panel hits the bus shelter at 14:18:33.

The Union also observed that Union President Timlin and MT witnesses acknowledged that panels popping up have been a problem for some time – so much so that the issue was discussed at both the 2018 and 2019 RTK Trainings conducted by retired Safety Specialist Larsen (Er. Exh. 6-027; 10-010). Indeed, Safety Specialist Bowman stated herein that a rash of panel incidents have occurred. However, the RTK Trainings never addressed or instructed relief drivers what to do about popping panels, nor did they instruct drivers to check panels at layovers or terminal stops. Rather, the documentary evidence presented by MT referred only to what drivers must do during their "pre-trip" checks. The Union pointed out that it is undisputed that pre-trip and layover/terminal checks are distinct.

The Union further observed that MT Procedure 4-7d allows management to assess less or no penalty for misconduct than is listed in the Procedure and to take mitigating circumstances into account; that Code 29 allows MT to disregard right mirror damage; and that less than 20% of all accidents are deemed "responsible" by MT and charged against Operators. MT witnesses disagreed with Safety Specialist Larsen’s assessment that the panel on Miller’s bus was open for 2 minutes and 15 seconds. Miller stated that Larsen told him "that if the panel came up when he was at the bus stop, he would not be responsible, but if he was driving around for half-an-hour without checking his mirrors, he would be" (U. Br., p. 6). The Union also observed that management did not believe Miller’s assertions that he had properly checked his mirrors on May 8th.

The Union urged that the "just and merited" standard of Article 5, Section 1 is equivalent to a just cause standard. Analyzing the record evidence herein, the Union asserted that MT failed to adequately consider mitigating factors. The Union contended that MT engaged in "a classical circular reasoning fallacy" based on the unproven assumption that if Miller had checked his mirrors (which MT asserted he did not) he would have seen the panel and avoided the accident (U. Br., p. 7).

The Union contended MT could have tested their assumption and Miller’s assertions by performing an accident re-creation, but MT chose not to do so. Instead, the Union asserted, MT presented no proof of what Miller could have seen of the panel in his right mirror and no proof 7

that he actually failed to check his mirrors on May 8th. Therefore, the Union urged, Miller’s testimony must be credited regarding what he did and what he could see on May 8th. The Union observed that Yang admitted that drivers can check their mirrors without moving their heads, by merely moving their eyes, and that Smith Safety Keys do not recommend moving the head; they only refer to using/moving the eyes. In these circumstances, the Arbitrator should credit Miller that he moved his eyes and properly checked his mirrors and yet he did not see the panel. As the only reason for Miller’s discharge according to Manager Bailey and the documents herein, was

The Union asserted that Co. Exh. 6-032 was not identified or discussed by any witness. This is not correct. Chang 7

Yang identified and discussed it at the hearing.

his failure to check his mirrors, the Arbitrator must disregard other reasons raised by MT at the hearing, such as his alleged failure to check the panel.

MT failed to consider mitigating circumstances in Miller’s case, even though MT managers acknowledged that consideration of weather as a mitigating circumstance is appropriate. The Union noted that MT submitted no evidence to show Safety Specialist Larsen or any MT manager considered the effect of rain or Miller’s ability to see the panel and avoid the accident. This evidence further supports a conclusion that MT’s decision to discharge Miller was without just cause.

In addition, the Union urged the Arbitrator to find the discharge penalty was too harsh in this case by considering mitigation and the fault of MT. Here, the Union argued that "the Employer is at fault for failing to correct a known and dangerous flaw in its buses" (U. Br., p. 9), which MT did nothing to correct from 2018 through 2019 even though it knew the flaw "could cause serious injuries to pedestrians" (U. Br., p. 10). The Union opined that had MT acted to correct the flaw, Miller would not have had his May 8th accident and this case would never have been brought. The Union urged the Arbitrator to set aside the discipline and reinstate Miller with a full remedy.

The Union submitted two prior awards with their Exhibit book – Union Exhibit 9 is a 2018 award by Arbitrator David Paull (Union Exhibits 9 and 10) concerning the "Record of Warning" given to Operator D.M. Muhammed for a broken bus window and a broken curbside bus mirror. Muhammed was an 18-year veteran of MT with only one prior accident in the previous rolling 36-month disciplinary period. Arbitrator Paull held that MT failed to prove that the mirror was actually so damaged by Operator Muhammed on August 30th as to require replacement, disqualifying the incident for Code 29 exemption from accident chargeability. Therefore, Paull sustained the grievance, set aside the discipline and expunged the discipline.

Union Exhibit 10 is a 2019 award by Arbitrator Jeff Jacobs concerning whether Operator Houston should have been charged with her second responsible accident in a rolling 36-month period. Jacobs found that there was not a preponderance of evidence to support a conclusion that Houston either broke a rule or that she could have reasonably avoided the accident. Therefore, Jacobs set aside the discipline and expunged her record.

DISCUSSION

Several preliminary matters must be dealt with first. There is no dispute that the Grievant received complete and proper orientation training for his Operator position at Metro Transit. In fact, Miller received additional re-training after his first three accidents: February, 2018 accident – four hours of one-on-one training; February, 2019 accident – Safety Keys Refresher course and April, 2019 accident – 8 hours of one-on-one training and ride check with Safety Specialist. Also, the 2019 OSHA RTK training occurred at the end of March, 2019. This RTK training included cautioning operators regarding spontaneously opening panels. It is undisputed

that Miller attended all of these trainings. Miller was clearly on notice that access panels had 8

caused problems for Operators. Although the 2019 RTK training directed operators to check panels during pre-trip checks only, this does not mean operators were allowed to ignore this potential problem while they drove their routes.

There is also no question here that the preponderance of the evidence standard should apply. Both parties have couched their arguments using that standard. Also, as both parties applied a just cause standard, equating it to the "just and merited" contractual standard, the just cause standard will be used in this case.

Both sides put a great deal of evidence into this record concerning what operators are expected to do at terminal or layover stops and as a relief driver. This evidence proved not particularly relevant to this case because no evidence was submitted to show the panel on Miller’s bus was actually open at either of his layover stops. But it was instructive to show that MT’s Standard Operating Procedures and Handbooks do not require operators to check access panels at terminal/layover stops and that the only place physical panel checks are required to be done is during the pre-trip check. Of course, operators are expected to sound all their tires with a hammer at terminal/layovers, visually inspect lug nuts, and do a visual check of the exterior of their buses for "damage, cleanliness, graffiti, correct destination sign" (Co. Exh. 5-016). During this process, if a panel were open, the operator would see it and act.

Here, it must be assumed that the rear passenger-side panel on Miller’s bus was not open when he made relief or at either his Mall of America or Maplewood Mall terminal stops. But Miller did have the above-described duty to perform relief and layover external checks. The evidence showed that he did these and found nothing untoward.

I turn now to the merits of this case. This has been a difficult case to decide. Here, Miller was the only witness present on the bus on May 8th. If there were no bus videos, we would have to take his testimony on face value. But there were bus videos, documents and the testimony of managers on other points to assist us in assessing what happened on May 8th and how it should be treated.

Other evidence weighs against Miller. He only worked for MT 5.5 years. He had four accidents in a 16-month period, with the last three occurring from February, 2019 to May, 2019 in a four-month period. His third accident involved his making an illegal left turn which caused the accident—a serious violation. It also weighs against Miller that he testified herein that after his third accident he said that he was determined to turn things around, to pay close attention and get it right and have no more accidents. And yet, one month later, the May 8th accident occurs.

The 2018 RTK training also cautioned operators about popping panels. Miller was present at the 2018 RTK as 8

well.

The Union has argued that on May 8th, the weather was rainy and cloudy and Miller could not see the panel in his "rain-soaked right mirror". But the Union submitted no evidence to show Miller’s mirror was defective or that rain blocked Miller’s view. I note that on the bus "Windshield" video, although Miller had his windshield wipers working on a high speed, the rain did not appear to be pouring down on May 8th, so as to hamper his visibility.

Miller stated he checked his mirrors as expected and required by MT by moving his eyes, but he did not "rock and roll" in his seat or turn his head because it is not required or expected unless an Operator’s driving is being evaluated by management. The Union further argued that because Miller was the only witness present on the bus on May 8th, his testimony must be credited. But we also have the bus videos, some documents and other testimony from MT witnesses contradicting Miller regarding how often operators are expected to look in their mirrors, and that operators need to move their heads and to "rock and roll" in their seats throughout their shifts. In addition, it is significant that Union President Timlin did not corroborate Miller that "rock and rolling" in the driver’s seat is unnecessary and that simply moving the eyes, not the head, while driving is sufficient.

Beyond the above concerns, a commonsense blow-by-blow analysis of the videos and facts produces a compelling picture. Although it is true that the rear panel is thin and appears small in the right mirror, the panel was rising and falling during Miller’s route on May 8th. It is undisputed that the panel was open from 14:16:15 to 14:16:42, 27 seconds, while the bus was stopped at St. Paul and West Seventh Street. According to MT’s Standard Operating Procedures, when entering a bus stop, an operator must look in his right mirror three times and when leaving a bus stop, an operator must look in his mirror four times, a total of 7 times per stop.

Had Miller been regularly checking his right mirror while driving as well as when entering and exiting the St. Paul and Maynard Drive stops, the movement of the panel up and down should have caught his eye and caused him to check out the situation. Also, Miller stated he always watches for people who are running from the rear to catch the bus at the last moment because they could be sucked under the bus wheels. But Miller did not see the open panel in his right mirror when looking for runners while he was waiting at the St. Paul stop.

At 14:16:42 the bus pulled away from the St. Paul stop and the panel disappeared. Again, Miller did not catch sight of that movement in his right mirror. Almost one minute later, at 14:17:34, Miller moves his head to the right and the bus stops at Maynard Drive. At 14:17:53 the panel appears in the video again while passengers are boarding the bus. Thirty seconds later, Miller pulls out of the Maynard Drive stop. MT’s Standard Operating Procedures required Miller to look in the right mirror seven times entering and leaving that stop and he would also have looked particularly for runners – late-arriving passengers – before he pulled out of the Maynard stop. Again, Miller did not see the open panel at this time. Seven seconds later, the panel crashed into the bus shelter.

The detailed description above shows the many chances (14, 16 if one adds on for runners checking) Miller had, just while entering and leaving the St. Paul and Maynard stops to catch sight of the open panel. And since the panel was fluttering open and closed, he should have had even more chances to see it as it moved up and down. It is simply not reasonable to believe that he would not have seen the panel on May 8th if he had been checking his mirrors every 5 to 8 seconds and seven times (per the Standard Operating Procedures), when entering and leaving each bus stop. As it moved, the panel should have caught his eye. Therefore, in my opinion, the preponderance of the evidence weighs in favor of finding that Miller failed to properly check his mirrors on May 8th.

I note that at his Loudermill hearing, Miller admitted that he should have looked (in his mirrors) more carefully on May 8th. This statement, made close to the time of the accident, has the ring of truth. It is common practice for arbitrators to take such statements into account when making credibility resolutions. Thus, the fact that Miller later stated that he did everything he could to avoid the accident directly conflicts with this earlier statement. 9

The Union argued that SS Larsen told Miller that if the panel had been open at a bus stop the accident would not have been chargeable but if he drove around for 30 minutes with it open the accident would be chargeable. The Union implied this evidence was a reason for imposing a lesser penalty here.

SS Larsen did not testify in this case so the statement is hearsay. We arbitrators take and weigh hearsay in our cases all the time when no one objects to it, as occurred here. I find the statement has little weight. Nothing in the SOPs or training documents support this statement. And Larsen found the accident chargeable after specifically finding that the panel was open for 2 minutes and 15 seconds. Indeed, in my view, the only impact the evidence has in this case is that it tends to undermine the credibility of Miller because there is nothing else in this record to back it up.

The Union asserted that MT knew the panels had been popping up since 2018, yet it failed to do anything to correct the problems so that hazards would be avoided. I agree that the Company should have acted to keep the panels from popping open. But MT’s failure to act does not excuse Operators from their duty to be vigilant concerning the safe operation of their buses.

MT cited the Laumeyer Award to indicate that a grievant's testimony should be discounted because they have 9

a "stake in the outcome". In my experience, managers often have as much at stake as grievants do in a discharge case, as their reputations are often on the line. Therefore, I never discount either a grievant’s or a manager’s testi-mony on such a facile basis alone. I require more.

Counsel for MT cited Professor Richard Mittenthal’s 1978 paper on credibility given at 10

the National Academy of Arbitrators Annual Meeting, when Mittenthal was President-Elect of the Academy. Mr. Mittenthal’s paper is masterful and instructive. Based on that paper, what if any, inference or conclusion can be reached herein regarding Miller’s inconsistent statements in these circumstances? Professor Mittenthal cautions against giving a person’s inconsistencies too much weight. These, he says, may prove nothing. Instead, Mittenthal urges arbitrators to ask the following questions:

. . .

Does the witness’s inconsistency concern mere detail or the crucial matters in dispute? At what point does inconsistency of detail become substantial enough to discredit a man? Does the particular inconsistency indicate untruthfulness or just slovenliness of mind and eye? Can consistency itself become suspect where the witness has repeated his story in great detail many times without the slightest variation?

I do not suggest any answers to these questions. I do suggest that the arbitrator must go beyond the broad categories of consistency and inconsistency. He must remain skeptical. He must ask himself whether a lie is hidden behind a veil of consistency or truth is obscured by the distraction of inconsistency. 11

. . .

Here, Miller has contradicted himself on a crucial matter. As such, I believe I can fairly compare Miller’s Loudermill statement to those he made later on.

The Union cited two cases (U. Exh. 9 and 10). I find these inapposite. Both concerned discipline, not discharge actions. In both cases, MT failed to prove the operators broke a rule or that they could have avoided the accidents involved. I note that although the Union asserted Procedure 4-7d has not been uniformly applied by MT, the Union was unable to cite any similar cases to me where the grievant was reinstated. Also, the Union presented no evidence of disparate treatment to me in this case and it presented no evidence of commendations for Miller.

On top of this, there is the evidence that Miller had his last three accidents in a 4-month period and (as MT pointed out) he worked just six shifts between his third and fourth accidents. These actions evidence a shocking and unexplained lack of attention.

I was honored to have known Professor Mittenthal. I believe he was one of our greatest arbitrators and one of the 10

best thinkers and writers about arbitration who has ever lived.

Id., at p. 67.11

The Union argued that MT should have done an accident re-creation, that it should have taken the weather into consideration as a mitigating factor in this case, and that Safety Specialist Larsen’s assessment that the panel was open for 2 minutes and 15 seconds was wrong. It is clear that the panel had to be unlatched for at least 2 minutes and 15 seconds or it could not have opened and closed and then crashed into the Maynard shelter while Miller drove the bus between 14:16:15 and 14:18:33. So technically, Safety Specialist Larsen and Safety Specialist Bowman were correct that the panel was unlatched for over 2 minutes.

Regarding MT’s choice not to perform an accident re-creation, this is a management decision which arbitrators are loath to interfere with except in rare circumstances. I do not detect any such circumstances here. Finally, operators must drive in all kinds of weather in the Midwest – much worse than that which Miller encountered on May 8, 2019. If rainy and cloudy weather constituted a mitigating circumstance, it strikes me that few MT operators would be charged with accidents. As stated infra, no evidence was presented to show Miller’s right 12

mirror was defective – that it was fogging up or retaining rain so as to block his view on May 8th.

It is undisputed that MT’s first priority is the safety of its passengers, employees and the public at large. One takeaway from this case and a picture that I cannot get out of my head is that the top of the panel, when open, is 4.5 feet off the ground, and the panel is solid metal, 1/16 or 1/8 inch thick, painted white and 18 square feet in size. As such, the open panel could have decapitated a pedestrian at Maynard Drive or, when it crashed into the glass bus shelter there, the shattering glass and the panel itself could have seriously injured a bystander or bystanders. It was fortunate that no one was injured on May 8th. In all of the circumstances here, I believe the Company has met its burden of proof by a preponderance of the evidence. I refuse to interfere with its judgment regarding the appropriate penalty. I issue the following

AWARD

The termination of the Grievant, Vernon Miller, following his fourth accident in a rolling three-year period was just and merited. The grievance is therefore denied and dismissed in its entirety.

Dated at Milwaukee, Wisconsin this 2nd day of July, 2020.

_______________________________________________________ Sharon A. Gallagher, Arbitrator

The Union argued that of the accidents Safety Specialist Larsen investigated, he found only 15% of them charge12 -able, so Larsen should not have found Miller responsible for the May 8th accident. There is no basis on which to second-guess Larsen’s assessment or to find he acted arbitrarily, discriminatorily or unfairly in his investigation of Miller’s May 8th accident, based upon this record.