Kenneth Eikenberry, Attorney General, by Robert M. McIntosh, appeared on behalf of Washington State Ferries.

Captain Dave A. Boyle, Vice President, Pacific Maritime Region, International Organization of Masters, Mates and Pilots, appeared on behalf of Captain Lee.

I. BACKGROUND

On April 14, 1986, Captain Terry Lee was Master-in-Charge of the ferry vessel Hyak on its morning eastbound trip through the San Juan Islands to Anacortes. Captain Lee’s mate at the time was Michael O’Connor. Mate O’Connor had a Masters license and had worked as a Master. Captain Lee and Mate O’Connor had several years’ experience working together on the San Juan route in the roles they occupied on this cross.

Because of a painting project on one end of the vessel, Captain Lee, at Mate O’Connor’s suggestion, had ordered the boat to run in the reverse of its normal attitude during the trip from Lopez Island to Anacortes. This reversal of attitude necessitated two vessel turnaround maneuvers—one when leaving Lopez and another when approaching the Anacortes dock. The Lopez turnaround, performed by Captain Lee, was completed without incident. Mate O’Connor then took command of the vessel for the run to Anacortes, a customary procedures, and Captain Lee left the wheelhouse.

Some ten to fifteen minutes prior to the anticipated start of the second turnaround maneuver, Captain Lee began the walk to the aft wheelhouse, the position he would occupy during the second turnaround, along the passenger deck. Captain Lee arrived at that wheelhouse before the second turnaround maneuver was begun. Noticing that the vessel seemed closer to shore than appropriate, he was about to phone Mate O’Connor at his wheelhouse when the vessel ran aground off Shannon Point.

Following the grounding, Captain Lee was suspended by Washington State Ferries for ten working days beginning April21, 1986. This suspension was appealed by Captain Lee according to Rule XXII of the 1983-1985 Agreement between Washington State Ferries and the International Organizations of Masters, Mates and Pilots, the agreement in effect at the time of the action, in a letter dated May 5, 1986. On June 16^th, a Union-Management conference was held and on June 23^rd, Washington State Ferries advised the Union that they found “no basis for reversing the decision to impose a ten-day suspension on Captain Lee”. On July 16^th, Captain Lee requested a hearing with the Masters, Mates and Pilots’ Delegate Committee pertaining to the matter. This meeting was held on August 7^th at which time the committee found in favor of Captain Lee. On August 13^th, Captain Dave Boyle, acting on behalf of the Committee, advised Washington State Ferries that they were expecting that “ten days pay will be remitted to Captain Lee forthwith”. On September 3^rd, Washington State Ferries advised Captain Boyle that in accordance with Section 22.03 (sic) of the Labor Agreement, they intended to refer the dispute to arbitration. The Masters, Mates and Pilots, on September 11^th, agreed to utilize the Marine Employees’ Commission to arbitrate the matter. The matter was submitted to the Marine Employees’ Commission for arbitration by a submission dated September 26, 1986.

The hearing was held before the Marine Employees’ Commission Chairman David Haworth on January 28, February 4^th, and February 18, 1987. Subsequent to the completion of the hearing, Captain Lee requested that the USCG investigative File on the Hyak grounding be admitted as evidence. In his letter dated April 14, 1987 Assistant Attorney General Robert M. McIntosh, on behalf of Washington State Ferries, agreed to the file’s admission as evidence, subject to certain conditions subsequently fulfilled. This File was accordingly admitted as evidence and is referred to as “Exhibit 21” throughout. Commissioners Kokjer and Stewart did not participate in the hearing, but have reviewed the transcripts, exhibits and briefs.

II. ISSUE

It was agreed by the parties that the issue to be resolved was whether Captain Lee was properly disciplined for the April 14, 1986 grounding of the ferry vessel Hyak.

III. POSITIONS OF THE PARTIES

Washington State Ferries Position

WSF contends that:

1.                  Captain Lee and the Masters, Mates & Pilot Union have the burden of proving that Captain Lee’s discipline was improper; that neither the Union Delegate Committee’s decision in favor of Captain Lee nor the failure of the Coast Guard to discipline Captain Lee shifts this burden.

2.                  Captain Lee had overall responsibility for the operation and safe navigation of his vessel; that this responsibility was not eliminated by his extensive experience with Mate O’Connor.

3.                  The Anacortes turnaround maneuver attempted on April 14, 1986, was unusual, infrequent, and potentially difficult.

4.                  Captain Lee’s overall responsibility for his vessel and failure to take reasonable precautions justify his suspension.

Captain Lee’s Position

Captain Lee contends that:

1.                  The suspension mars an otherwise clean record dating from June, 1959; that he ran his vessel in a professional and efficient manner at all times.

2.                  Management has issued confusing guidelines regarding proper and prudent performance of his duties.

3.                  He should not be responsible for failure to anticipate a momentary error in judgement.

4.                  His actions during the April 14 run were proper and in accordance with acceptable vessel operating procedures.

5.                  His suspension was handed down unjustly, as the result of overreaction by Washington State Ferries management.

IV. FINDINGS OF FACT

1.                  Captain Terry Lee is an employee of Washington State Ferries.

2.                  Captain Lee is a member of Masters, Mates and Pilots Union.

3.                  Paragraph 21.01 of Rule XXI of the Labor Agreement between the parties (Exhibit 1) provides Washington State Ferries the “…right to discipline any Deck Officer for cause.”

4.                  The cause for the discipline at issue was identified to Captain Lee as his “ultimate responsibility (as Master) for the vessel and the actions of (his) crew members” relative to the April 14, 1986 Hyak grounding in Exhibit 20.

5.                  Within Washington State Ferries the Master has overall responsibility for vessel operations at all times. This policy is documented in Washington State Ferries’ Policy Circular 01-R1 (Exhibit 18) and its understanding is confirmed in various testimony (TR 122, 17; TR 68,6).

6.                  The finding of the Delegate Committee is limited to the conclusion that because Captain Lee “wasn’t in the wheel house that was in control at the time of incident” he should not be held responsible (TR 30, 8).

7.                  Coast Guard requirements and findings represent minimum acceptable standards rather than performance requirements.

8.                  The procedure of delegating vessel control to the Mate during the Lopez/ Anacortes segment of the San Juan run was customary. Mate O’Connor was qualified to handle the vessel, had significant experience in control of the vessel through that particular segment and had extensive experience working under Captain Lee in the San Juans.

9.                  It was not unusual that Captain Lee was not in the wheelhouse for the Lopez/Anacortes segment. The breadth of responsibilities and duties as outlined by Washington State Ferries would normally require the Master to be absent from the wheelhouse at some times, with control of the vessel delegated to the Mate.

10.              The Hyak grounding occurred well prior to commencement of the turnaround maneuver at Anacortes (Exhibits 2 and 3; TR 307, 9, 12; “Exhibit 21”, Page 6). Therefore neither the maneuver nor the proper procedures for it is at issue in this matter.

11.              Captain Lee provided no written or verbal instruction to the Mate with regard to appropriate distance from Shannon Point (TR 145, 15).

12.              There are no clear cut procedures with regard to issuance of specific written or verbal standing orders by Masters to Mates (TR 247, TR 248, TR 276), although it is not unusual for an experienced Master to provide some verbal direction to an experienced Mate (TR 247, TR 260, TR 276, TR 277, TR 278).

13.              There was disparity between Captain Lee and Mate O’Connor’s perception of the appropriate distance to be maintained from Shannon Point. Captain Lee and other Masters were of the opinion that a minimum of one quarter mile distance would be appropriate (“Exhibit 21”, Page 71; TR 260, TR 278). Mate O’Connor felt a distance of from 180 to 200 yards was acceptable (“Exhibit 21”, Page 79). Because of failure to communicate on this issue, this disparity continued to exist.

14.              Suspension is a penalty available to Washington State Ferries under existing disciplinary policies.

15.              Neither party suggested alternative penalties that could have been administered to Captain Lee as the result of the disciplinary action taken by Washington State Ferries management.

IV. CONCLUSIONS OF LAW

1.                  The disciplining of Captain Lee by Washington State Ferries followed the procedure in Rule XXI of the Labor Agreement between the parties.

2.                  The dispute procedures that were followed in this matter are in conformance with Rule XXII of the relevant Labor Agreement between the parties.

3.                  The Marine Employees’ Commission has a jurisdiction as selected arbitrator under the provisions of Paragraphs 22.04 and 22.05 of Rule XXII.

4.                  This decision and order is issued in accordance with the provisions of Paragraph 22.06 of Rule XXII.

5.                  The finding of the Union Delegate Committee is not applicable to the question of overall Master responsibility.

6.                  The Marine Employees’ Commission is not limited by the Coast Guard finding of no negligence on the part of Captain Lee (“Exhibit 21”, Pages 20, 22 and 24). While the Coast Guard findings are sufficient to clear Captain Lee of negligence, they stop short of dealing with his full scope of responsibility.

7.                  Neither the Anacortes turnaround maneuver nor the proper procedures for it is at issue in this matter.

V. ORDER

Based on the foregoing Findings of Fact and in accordance with the above Conclusions of Law, the disciplining of Captain Terry Lee by Washington State Ferries management is ordered upheld.

DATED at Olympia, Washington, this 15^th day of June, 1987.

MARINE EMPLOYEES’ COMMISSION

[SIGNED]

/s/ DAVID P. HAWORTH, Chairman

/s/ DONALD E. KOKJER, Commissioner

INTRODUCTORY REMARKS

This dissenting opinion recognizes that the Master of a Washington State Ferries (WSF) vessel is charged with the authority and principal responsibility for the safety of that vessel and, more importantly, of the passengers and crew. This opinion also recognizes that the Master is responsible for the performance of the crew under his/her command. Nothing in this dissenting opinion diminishes that recognition.

But this dissenting opinion also recognizes that Masters of WSF vessels are WSF employees, and, as such, enjoy a statutory right to the protection of a collective bargaining agreement.

Further, this dissenting opinion recognizes that certain terms in the Agreement between Washington State Ferries and the Masters, Mates and Pilots Union (MM&P), specifically applicable to this dispute, are clear and unambiguous. When the terms of a collective bargaining agreement are clear and unambiguous, this Marine Employees’ Commission is required to apply strictly those terms to the facts.

Having read the entire record, including the grievance as filed, hearing transcript, post-hearing briefs, and the Background, Issue, Positions of Parties, Findings of Fact, Conclusions of Law, and Order as entered by the majority members of this Marine Employees’ Commission, I now find that said majority appear to have decided virtually to ignore the most applicable provision of the WSF/MM&P Agreement. More specifically, after having determined that the issue at hand is whether or not Captain Terry Lee (Grievant) was properly disciplined for the April 14, 1986 incident, the majority only barely acknowledged the requirement for “cause” for disciplining a Deck Officer, and then totally failed to determine whether or not that contractual requirement was satisfied when Grievant was suspended.

A principal factor in the only other split decision by this Commission (Hansen v. WSF, MEC Case No. 4-83, Decision No. 6-MEC) also was whether or not the requirements of “cause” were met in a disciplinary action (suspension followed by termination). Until and unless this Commission specifically determines whether or not the tests of “cause” are met when required by contract, such a requirement is rendered meaningless.

Therefore, I have attempted in the following dissent to spell out in extraordinary detail the findings of fact and conclusions of law which, I believe, indicate that the majority is in error in their decision in this matter.

FINDINGS OF FACT

1.                  “It was agreed by the parties that the issue to be resolved was whether Captain Lee was properly disciplined for the April 14, 1986 grounding of the ferry vessel Hyak.” (Statement of Issue, Majority Decision No. 30 MEC)

2.                  “Discipline” of WSF Deck Officers is controlled by Article XXI of the WSF/MM&P Agreement:

XXI.

DISCIPLINE

21.01 DISCIPLINE FOR CAUSE The Employer shall have the right to discipline any Deck Officer for cause which shall be detailed and communicated in writing to both the Union and the Deck Officer involved (emphasis added).

21.02 GUIDELINES FOR PERFORMANCE The Employer shall prepare and disseminate to all Deck Officers a set of guidelines specifying rules of conduct and areas of responsibility for Deck Officers, which may be modified at the Employer’s discretion from time to time. Such guidelines shall list causes for termination, demotion and suspension (emphasis added).

21.03 INVESTIGATION OF CAUSE FOR DISCIPLINE The Employer shall have the right to hold any Deck Officer out of service pending an investigation of possible basis for disciplining such Deck Officer and pending any hearings and appeals conducted pursuant to the provisions of this Agreement relating to disputes (Section XXII) if both the Union and the Deck Officer involved are promptly notified, in writing, of any such action. If such a Deck Officer is exonerated of the charges as a result of any such hearing or appeal, he shall immediately be reinstated to his prior position without loss of seniority; shall be paid for all time lost in the amount which he would ordinarily have earned had he been continued in the service during such period; shall all documents pertaining to the specific incident removed from his personnel file and all other records of the Employer immediately changed to reflect the disposition; and the incident shall not be used against the Deck Officer in any manner.

21.04 DEROGATORY DOCUMENTS A Deck Officer shall be given a copy, at his request, of all written censures, letters of reprimand, adverse reports, adverse performance evaluations, or other documents of an adverse or derogatory nature which are placed in such Deck Officer’s personnel file. The Deck Officer may respond to such material, which response shall be placed in his personnel file; or he may resort to the grievance procedure established by the provisions of this Agreement relating to disputes (Section XXII), and the eventual adjudication or resolution of the dispute shall also become a part of his personnel record.

3.                  “Cause” is fined as follows:

Cause. Each separate antecedent of an event. Something that precedes and brings about an effect or a result. A reason for an action or condition. A ground for legal action. An agent that brings something about. That which in some manner is accountable for condition that brings about an effect or that produces a cause for the resultant action or state. State v. Fabritz, 276 Md. 416, 348 A. 2d 275, 280.

…

See For Cause. (Black’s Law Dictionary, 5^th Edition, 200f (1979))

4.                  “For cause” is defined as follows:

For cause. With respect to removal from office “for cause”, means for reasons which law and public policy recognize as sufficient warrant for removal and such cause is “legal cause” and not merely a cause for which the appointing power in the exercise of discretion may deem sufficient. (State ex rel Nagle v. Sullivan, 98 Mont. 425, 40 P. 2d 995, 998.) They do not mean removal by arbitrary or capricious action, but there must be some cause affecting and concerning ability and fitness of official to perform duty imposed on him. The cause must be one in which the law and public policy will recognize as a cause for official no longer occupying his office. (Napolitano v. Ward, D.C. 111, 317 F. Supp. 79, 81.) (ibid, 580)

5.                  “Legal cause” is defined as follows:

Legal cause. Proximate cause (q.v.) Substantial factor in bringing about harm. (Krauss v. Greenberg, C.C.A. Pa., 137 F.2d 569, 572; Giles v. Moundridge Milling Cr., 351 Mo. 568, 173 S.W. 2d 745, 750. In conflicts, denotes fact that the manner in which the actor’s tortuous conduct has resulted in another’s injury is such that the law holds the actor responsible unless there is some defense to liability. Restatement, Second, Conflicts, 160, Comment a.

The words “legal cause” are used throughout the Restatement of Torts to denote the fact that the causal sequence by which the actor’s tortuous conduct has resulted in an invasion of some legally protected interest of another is such that the law holds the actor responsible for such harm unless there is some defense to liability. Restatement, Second, Torts, PP 9.

See also Cause. (ibid, 804)

6.                  The only “guidelines specifying rules of conduct and areas of responsibility” (specified in Article 21.01 (see FF2, supra) placed in evidence are WSF Policy Circular #01-R1, Master’s Authority and Responsibilities, dated April 18, 1983, revised November 10, 1983, and a memorandum from Armand Tiberio, WSF Operations Director, dated May 2, 1986, on the subject of Maintenance and Cost Control Procedures.

WSF Policy Circular #01-R1 contains three statements of a Master’s Authority and lists seventeen separate Responsibilities. In the interest of brevity, Policy Circular #01-R1 is appended hereto and is considered part of this Finding of Fact.

7.                  Neither WSF Policy Circular #01-R1 nor the May 1, 1986 memorandum lists any “causes for termination, demotion and suspension” required by Article 21.02, supra.

8.                  The notification letter from WSF Marine Superintendent D.R. Schwartzman, notifying Grievant that he was being suspended, first sets forth certain allegations regarding damage caused by Mate O’Connor in grounding the Hyak and then states the only charge against Grievant as follows:

…I must emphasize that even though Mr. O’Connor was the watch standing officer and thus in control of the vessel at the time of the accident, you as the Master of the vessel are charged, pursuant to Washington State Ferries Policy Circular #01-R1, with the ultimate responsibility of the vessel and the actions of your crew members. That is, you as the Master, are not relieved of your authority or responsibility when you are not piloting the vessel.

Accordingly, I am hereby imposing a ten (10) work-day suspension without pay, which is not to be substituted with vacation pay or comp time, commencing April 21, 1986.

Should any incident similar to this occur in the future serious disciplinary action will result. … (Ex 20)

Grievant was not charged with violation or non-performance of any of the seventeen Master’s responsibilities listed in Policy Circular #01-R1. Nor was Grievant charged with any negligence or misconduct or non-performance of any duty or responsibility not listed on Policy Circular #01-R1.

9.                  No past practice of disciplining a Master for an error of judgment by a Mate while the Master was on board was cited.

Based on the foregoing additional Findings of Fact, I find that the following Conclusions of Law should have been considered in the majority decision:

CONCLUSIONS OF LAW

1.                  In order to decide the issue in this matter (Finding of Fact No. 1) fairly, MEC must apply the clear, unambiguous terms of Article 21.01 and 21.02 to the facts. To do otherwise fails to enforce the true meaning of said Agreement. (See How Arbitration Works, 4^th Edition. Elkouri and Elkouri, 348-9 (1985)). Further, MEC is prohibited by statute from changing or amending the terms, conditions, or applications of the collective bargaining agreement. (RCW 47.64.160).

2.                  WSF failed to prove that Grievant Lee either did or failed to do anything which preceded or brought about the grounding of the Hyak. He provided no reason for the accident. He provided no ground for legal action. He did not bring it about. He provided nothing that in any manner was accountable for the condition that brought the accident about or that produced the accident. Therefore, the “cause” required in Article 21.01, WSF/MM&P Agreement, is not satisfied. (See Finding of Fact 3., supra.)

3.                  It follows from Conclusion of Law No. 2, supra, that if Grievant Lee neither acted nor failed to act in such a manner that the grounding of the Hyak occurred, then there was no “cause affecting and concerning the ability of fitness” of Grievant to perform his duty as Master. Therefore, there was no “legal cause” for Grievant Lee’s suspension. (See Findings of Fact No. 4 and 5, supra). Therefore, the “for cause” required in Article 21.01, ibid, is not satisfied. Captain Lee was suspended merely for a cause which the WSf management deemed to be sufficient.

4.                  Findings of Fact Nos., 8, 9 and 10 in the Majority Decision each support Conclusions of Law Nos. 2 and 3 in this Minority Decision.

5.                  Although technically correct, the Majority Finding of Fact No. 9 is prejudicial as stated. “It was not unusual that Captain Lee was not in the wheelhouse…” appears to be technically correct, but could also be read as either (a) he was usually not in the wheelhouse or (b) he just happened not to be in the wheelhouse. However, this decision is involved with a detailed consideration of what Grievant Lee did or did not do. A more precise statement of fact would have been that Captain Lee left the forward wheelhouse and proceeded to the aft wheelhouse for the purpose of performing his part of the turnaround of the Hyak in the usual and customary manner.

6.                  The logic of the stated charge against Grievant Lee, that he was ultimately responsible for the accident merely and only because he was the Master of the Hyak, fails totally. Without some contributing action or failure to act on his part, as required in the discussion of “cause” and “for cause,” supra, any Master is in jeopardy of arbitrary or capricious decision to discipline any time said Master is aboard his/her vessel, whether or not he/she is at fault.

7.                  WSF failed to prove that Grievant Lee violated a single one of the seventeen Responsibilities of a Master as listed on WSF Policy Circular #01-R1, as the “cause” or “for cause,” required by Article 21.01, ibid.

8.                  Even if the language of Article #21.01 were not clear and unambiguous, WSF presented no past practice of disciplining Masters for actions of their Mates to support the WSF interpretation of Policy Circular #01-R1 indicated by the letter of suspension.

9.                  WSF did violate Article 21.2, WSF/MM&P Agreement, when WSF Policy Circular #01-R1 and the May 2, 1986 memorandum on Maintenance and Cost Control Procedures were issued. These were cited by WSF during these proceedings as guidelines. Article 21.02 requires the “causes for termination, demotion and suspension” to be listed on such guidelines, but such “causes” were not included in either document.

10.              On the grounds that Grievant Lee was not suspended “for cause” as required by Article 21.01, and on the grounds that WSF failed to notify Grievant Lee and/or MM&P of the causes for discipline as required by Article 21.02, MEC must conclude that Grievant Lee’s suspension was not valid and should be overturned and Grievant Lee’s records purged of any reference to this suspension. Anything less would be an unjustified blotch on Captain Lee’s unblemished record of twenty-eight years.

Based on the foregoing additional Findings of Fact and additional and/or differing Conclusions of Law, I now dissent from the Decision and Order entered by the majority members of the Marine Employees’ Commission and enter a minority opinion of a fair and equitable Order which is congruent with the WSF/MM&P Agreement:

DISSENTING OPNION AND PROPOSED ALTERNATIVE ORDER

1.                  The ten-day suspension of Captain Terry Lee from 4/21/86 for ten working days was invalid, did violate the WSF/MM&P Agreement, and is hereby repealed.

2.                  WSF shall immediately pay Captain Lee the wage he would have earned had he not been suspended for ten working days, in accordance with Article 21.03, WSF/MM&P Agreement.

3.                  WSF shall immediately restore full seniority and all other rights and benefits to Captain Lee, ibid.

4.                  WSF shall immediately removal all documents pertaining to the Hyak grounding and the subsequent suspension from Captain Lee’s personnel file, and all WSF records shall be changed to reflect such disposition.

5.                  WSF shall not use the Hyak grounding accident nor the subsequent suspension of Captain Lee against the Grievant in any manner.

DATED at Olympia, Washington, this 24^th day of June, 1987.

MARINE EMPLOYEES’ COMMISSION

[SIGNED]

/s/ Louis O. Stewar

TO: MASTERS

SUBJECT: MASTER’S AUTHORITY & RESPONSIBILITIES

MASTER’S AUTHORITY

1.                  The Master is entirely responsible for the operations of the vessel at all times.

2.                  The Master has full authority and responsibility for maintaining discipline, safety and efficiency of the personnel and equipment assigned to him.

3.                  All Officers and crew shall obey and enforce all orders and instructions issued by the Master.

RESPONSIBILITIES

The following are the responsibilities of the Master:

(1)               To ensure that all crew members are familiar with their duties, and carry them out in an efficient and seamanlike manner.

(2)               To maintain a close liaison with the Chief Engineer, including periodic engine room inspection, with regard to all ship’s machinery.

(3)               To maintain a high standard of discipline on board the vessel.

(4)               To take charge of the Bridge whenever he considers it necessary to do so.

(5)               To initiate and maintain an orderly and efficient daily work routine for all assigned employees which will contribute to the safe and efficient operation of the vessel and the well being of all on board.

(6)               To approve all orders for any deck equipment or ship’s stores before submitting the orders to the Port Captain.

(7)               To train the vessel’s crew in all phases of the vessel’s operation, where training is required.

(8)               To attend all the vessel’s business promptly and accurately, i.e.; Log Books, Overtime Reports, Repair Lists, Deck and Provision Orders, WSF and U.S. Coast Guard Accident Reports, etc.

(9)               To determine and evaluate the capabilities and performance of each member of the crew, and inform the Port Captain of the same in the prescribed manner.

(10)           To ensure that the vessel is being run in compliance with the laws governing Marine Inspection, the Rules of the Road, and any other regulatory or statutory requirements. Such laws and regulatory and statutory requirements shall take precedence over any conflicting instructions contained in this manual.

(11)           To ensure that each crew member knows his station and duties in firefighting and lifesaving. Fire, man overboard and abandon ship drill procedures shall be exercised not less than once a week.

(12)           To check and ensure all overtime and penalty pay is ordered and performed.

(13)           To make sure the vessel is properly crewed and manned at all times.

(14)           To document in the vessel log book any and all unusual occurrences, including deviations from normal courses, prior to the end of each shift and to bring to the attention of management all occurrences and incidents which require further investigation and action.

(15)           To ensure the cleanliness of the vessel and the appearance, neatness and conduct of the crew.

(16)           To report any injuries to passengers or crew as soon as practicable to management and to complete the appropriate accident report.

(17)           To ensure that all Officers and crew obey his orders and instructions.

D.R. SCHWARTZMAN

[SIGNED]

MARINE SUPERINTENDENT