Education for our leaders has been a priority to our Local in recent years. We dedicate this edition and future publications to the goal of passing this information to the membership. We will endeavor to inform you of your rights, and you will be encouraged to exercise them. "If we fail to exercise our rights, they may be forgotten and violations may become routine."

By Bob Lanucha

By Dan Francis

By Rick Clements

Article by Bob Lanucha, Vice President

On August 22, 2003 Harry Wallace was involved in a fatal bus/pedestrian accident. He was outbound on the #7 Hillside approaching the end of the line. He stopped short of Astrozon Blvd. while heading south on Chelton Rd. He unloaded a wheelchair passenger in the driveway to the town homes north of Chelton Rd. A pedestrian named Mr. Miller got off at that location also. Apparently during the time it took to stow the chairlift, Mr. Miller walked down to the corner.

As Harry approached the corner, the light was red and the wheelchair was waiting to cross the intersection southbound. Mr. Miller was waiting on the sidewalk next to the utility box and pole about seven feet back from the street. When the light turned green, Harry looked at Mr. Miller and he just stood there. Based on his body language, Harry’s judgment was that he was going to wait for Harry to turn before he crossed the street. As Harry started to negotiate his right hand turn, he quickly looked to his left to clear the intersection. As he looked back to the right, he saw Mr. Miller just to the left of the fare box. He immediately hit the brakes but contact was made with Mr. Miller. From the point of contact with the bus, Mr. Miller traveled 15 feet before he hit the ground. There was no conclusive evidence as to whether he stumbled back or was launched. There were no eyewitnesses that saw Mr. Miller make contact with the bus or hit the ground. They only heard the impact with the ground which was described by one witness as a thud.

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Mr. Miller was transported to the hospital where he died a couple of hours later from a head injury he sustained when he hit the ground.

Harry was taken for drug and alcohol tests which were negative.

Harry was placed on paid administrative leave while the investigation took place.

I was in contact with Harry the next day and offered my emotional as well as Union support. Within a few days we started talking about what happened and I started to prepare evidence that I knew would be vital at his initial accident hearing in front of the Springs Transit Safety Review Board.

I had a meeting with Larry Tenenholz and asked him if there would be a problem with me representing Harry at the initial accident hearing and presenting the case to the SRB. He told me that would be fine. There was some discussion of not dragging this process out any longer than it needed to be. We both agreed that if Harry received a decision of preventable from the SRB that it would not be prudent to appeal unless we could bring forward new information. I told Larry that I planned on bringing all I could to the first accident hearing and that the Union would not try to drag things out unnecessarily.

During my investigation and initial discussion with Harry, it didn’t take a genius to figure out two very basic things. He did not do this on purpose and obviously he did not see Mr. Miller start to cross the street. Harry mentioned to me that the fare box created a huge blind spot. He clearly stated that to be the reason he did not see Mr. Miller start to cross the street. In an interview with the company insurance agent just a few days after the accident, Harry mentioned the blind spot caused by the fare box several times.

Within a few weeks we had the police reports and a lot of valuable information. In the initial police report it was concluded that the accident was Harry’s fault and he received a citation for careless driving resulting in a death. We had obtained the autopsy report as well. We learned through the autopsy that Mr. Miller was very intoxicated at the time of his death. His blood alcohol content was .147 when taken at the hospital. Upon finding this out, Larry called Harry at his home to tell him. He told Harry he wanted him to have that information and to do with it what he will.

After Harry told me that Larry called him at home to tell him that, I met with Larry again. I told him that a lot of my evidence was showing the fare box blind spot to be the main cause of the accident. He told me that it would be a bad idea to press that issue with the SRB. He told me it would seem like we were trying to make excuses. He told me that in his opinion it would be better for me to concentrate on Mr. Miller’s actions and state of intoxication.

On October 8, 2003 I presented Harry’s case to the SRB. By this time we had much more information including supplements to the original police report from CSPD. The company representatives were Jerry Lindemann and Rick Forrest. The Union representatives were Phil Guinta and Tom Hitt. The fifth member and "safety professional" was Bob Cranford. He is a retired state patrol officer who was mutually agreed upon by the company and the union. He has been the "neutral party" on the SRB for over a year. Dan Francis, Jeanna Lanucha, and Harry’s wife Theresa sat in as observers. Boyd Higgenbotham sat as the Chairmen of the board

I followed Larry’s advice and tried to highlight Mr. Miller’s drunken state and actions as major contributors to the accident. I also concentrated on conflicting witness testimony as well as conflicting facts in several reports, including the police reports. I mentioned the blind spot caused by the fare box and showed the SRB photos taken by CSPD from inside the bus. I did not however, spend the amount of time on that as I should have. I ultimately lived to regret that very much. Harry lost that initial hearing and I felt like I failed him in the worst way.

Harry tried to assure me that I did an excellent job representing him. He told me how happy he was with the level of representation he received. I told him it wasn’t good enough because we lost.

Harry immediately expressed his desire to appeal the SRB decision. I told him that I felt like it would be better if Dan Francis handled the appeal. He said that he was alright with that and the appeal process began.

I gave Boyd the notice of appeal. I handed over all my documentation and evidence to Dan so he could prepare for the appeal. Dan told me he would work hard to obtain new information and evidence to present at the appeal.

A couple of days after the SRB voted preventable, Larry and I had a phone conversation. I don’t remember who called who. I remember him asking me if we really had new information to bring to the appeal or if we were just biding for time. I remember feeling bitter toward Larry for telling me to not make a big deal about the fare box blind spot. I felt even more bitter toward myself for listening to him. I told Larry that Dan was handling the appeal and he would just have to wait and see if there was new information or not.

Ultimately Dan obtained several new pieces of information to bring to the appeal. Among them was a letter written by Carolyn Chapman. She stated that she had made the company aware of this problem several times over the past twelve years. She accompanied Larry to the Gillig factory in 2001. She said that she insisted that he purchase and install shorter fare boxes on all buses purchased in the future. That never happened.

Dan also obtained a CD Rom from the police. It contained many more photos than I originally obtained. It also contained a video that was taken of another #7 bus in service making the same right hand turn as Harry did. It demonstrated the operator also looking to the left to clear the intersection as Harry did. It’s basically what we are all trained to do.

Probably the most compelling thing Dan obtained was a letter from the investigating officer who worked on Harry’s accident. His name is Detective Daniel Smoker. Among other things, he wrote, "I have investigated several fatal incidents where blind spots have been prime factors. The blind spot identified was the largest and potentially most unsafe factor in its operation."

Approximately one week prior to the appeal, Dan provided the Chairmen of the SRB, Boyd Higgenbotham, an outline of the material to be presented at the appeal as well as his intention of taking the SRB outside to the actual bus Harry was driving at the time of his accident.

The appeal took place on November 10, 2003. During the appeal Dan presented all the new information. It all focused on the blind spot created by the fare box. As some of the newer pictures were being passed around the table, I noticed that Rick and Jerry barely glanced at them. This caught my attention and I decided to pay closer attention to them throughout the appeal. In my opinion their body language suggested that they had their minds made up already and they were not very receptive to the information Dan was presenting.

When we went outside to the bus, Dan asked Bob Cranford to sit behind the wheel of the bus with the seat in the same position as Harry drives in. Mr. Cranford was immediately shocked by how much he could not see. Dan had Jeanna walk back and forth in front of the bus so Mr. Cranford could see things from Harry’s perspective. Dan was standing outside the bus presenting his case as Mr. Cranford sat behind the wheel. I thought that everyone was gathered around paying attention to Dan’s presentation. That’s when I looked behind me and saw Rick Forrest standing at least 30 feet away talking to Boyd. I could not believe it. He was not even listening or even pretending to be interested in Dan’s presentation. I then shouted out, "Hey Rick, you might want to come over here and pay attention. There’s an appeal presentation going on!" He gave me a funny look and then slowly walked back over to the group. As I turned back around, I noticed Jerry got on the bus and was talking to Bob Cranford as he sat behind the wheel. I told Jerry since he was up there that he should sit behind the wheel and try to see things from Harry’s perspective. He told me he did not need to sit behind the wheel. I made a comment to Phil Guinta at that time. I said, "I have never seen two guys more closed minded than Rick and Jerry in my life! This is ridiculous." Phil agreed with me whole heartedly.

When the appeal presentation finally concluded, Dan, Harry, his wife, and I waited outside for the SRB to make a decision. Despite my opinion of Rick and Jerry’s actions, Boyd came outside and congratulated Harry on a decision of non-preventable. He shook his hand and Dan’s as well. He told Dan that he did an excellent job presenting the appeal.

You can imagine the relief and joy Harry, his wife, and both Dan and I felt at that moment. I was so happy for Harry and his family.

At that point Dan and I started speculating. What would the company do now? How would they bring him back to work? Would they just tell him to report back? Would they start him out slow, maybe with another driver? A few days went by and Harry was not contacted by the company other than the letter of non-preventable he received from Boyd. Surely they will call him, right? They have to tell him what the plan is, right?

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On November 13, 2003 our curiosity and speculation was answered by Boyd Higgenbotham, Chairmen of the SRB. He sent out a notice to the SRB members stating that the company felt that they had not followed the guidelines of the preventable accident policy. He cited a paragraph in the policy that addresses intersections and blind spots. The paragraph states that blind spots are the responsibility of the driver and such accidents are preventable. He scheduled another meeting on November 17, 2003. I quote from the notice, "If the Safety Review Board fails to act in accordance with the preventable accident policy, the company will unilaterally decide the preventability or non-preventability of the accident based on the guidelines set forth in the preventable accident policy." What was interesting is how he failed to quote from the main body of the policy that reads, Springs Transit has established the following definition of a PREVENTABLE ACCIDENT as one in which a person fails to exercise a reasonable degree of knowledge, alertness, foresight, judgment, or skill in the events leading up to and during the accident. The basic presumption is that if the individual involved had demonstrated these qualities to a reasonable degree preceding the accident, the undesirable event would have been avoided. The operative word is REASONABLE as contrasted with the word possible or unreasonable. The line between what is reasonable or unreasonable must be drawn with discrimination and care by the judging party.

It was obvious to the Union that the SRB determined Harry’s actions up to and during the accident to be REASONABLE, thus the decision of non-preventable.

We were outraged when the company tried to stage another meeting in which they would unilaterally decide the preventability or non-preventability of Harry’s accident. Dan notified the company that this meeting would be in violation of the labor agreement and that the Union representatives of the SRB would not participate.

On November 17, 2003 when it came time for the meeting, the company sent a relief downtown for Jeanna so she could attend. Jeanna picked up the radio and called dispatch to let them know she did not need to be relieved because she was not going to participate in the meeting. She was ordered by the dispatcher on duty, Jerry, to return to the garage. When she got back to the garage and entered the conference room Larry told her that he was the boss and if he wanted her to sit in a corner for three hours, she’ll do it. Bob Cranford, the "neutral party" did not show up nor did Tom Hitt.

They ended up discussing the fare box blind spot but did not rehash Harry’s accident.

On November 18, 2003 Harry received a phone call from Marvin. He was asked to come in. I accompanied Harry to that meeting where he was terminated. We strongly objected of course but there was no need arguing with Marvin. From a Union standpoint I knew we were going to have to fight this the hard way through the grievance and probably arbitration procedure.

In the termination letter that Marvin wrote, he cited the fact that I "broke my word" to Larry. He said that we did not present any new information at the appeal and therefore the company was going to proceed with discipline as if the appeal never happened. The discipline was based on the accident being preventable and therefore he was terminated. This could not have been a more blatant violation of the labor agreement. It was clear in this case that the company was doing whatever they wanted.

After leaving Marvin’s office I assured Harry that we would fight this all the way. I then called Larry and got his voice mail. I told him that I knew this all came from him and that his actions were nothing less than despicable. He did not return my call that night.

The next day Larry requested to meet with me. I went to his office after my shift and met with him and Ryan Hiatt. We discussed the fact that Larry thought I "broke my word" and that there was no new information brought to the appeal. I told him I never agreed to violate the contract and that there was new information presented. I told him he was not at the appeal and could not make that judgment. I told him he could not act like the appeal did not happen and discipline Harry for having a preventable accident. He said he did not know whether or not he could do that either but it was the only way he would be able to sleep at night and felt that firing Harry was the right thing to do for Springs Transit and the city of Colorado Springs. He said that the SRB did something wrong by voting non-preventable and it was his duty to correct that wrong.

During the time I was in Larry’s office, Marvin Called Harry at his home. Harry taped that conversation. Marvin again cited the fact that I "broke my word’ to Larry as one of the main reasons why he was terminated. He also made the following

statements on tape: "This was a terrible tragedy and unfortunately you’re the one being hung with it." and "The bottom line is that this just got to be one big hot potato." He also tells Harry not to let the Union use him as a pawn. He then admits that by making that type of statement that he is subject to an unfair labor practice if the Union finds out. He asks Harry not to repeat his remarks to the union. He also states that he is stepping out on thin ice by talking to Harry in this manner.

Two days after this phone call was made to Harry at his home, I filed the initial grievance with Marvin. When he first received the grievance, he called me into his office and said he wanted to "help me" with the grievance. He said I needed to write my arguments on the grievance form. I told him that I had several pages of arguments ready to go and that I could proceed with the grievance at any time. He still insisted that I put them on the grievance form. When I got home I called Dan and asked him about this and Dan told me the grievance was just fine. I then emailed Marvin and told him to process the grievance the way it was submitted.

I thought that a meeting would then be scheduled so I could present my arguments to support the grievance. After a few days I got a written response instead. His response was filled with personal attacks on me and the union. He stated that both management and labor have an obligation to preserve the integrity of the grievance process and act in good faith. He accused the Union of not acting in "good faith" during the grievance process. I thought that was pretty rich coming from him after he made that phone call to Harry. Marvin denied the grievance.

I appealed to the second step of the grievance process where it was denied by Ryan Hiatt.

I then appealed to the third step of the grievance process with Larry Tenenholz. He was made aware of all that had happened up to that point in the process. He was given all the Union’s arguments supporting our position and was made aware of the taped conversation between Marvin and Harry. We had a series of meetings and discussions in the third step. Larry discussed giving Harry a position on the utility crew. Other ideas were tossed out on both sides. It was truly Larry’s and my goal to try to come up with a solution that was mutually beneficial to Harry and Springs Transit. In the end we just couldn’t get it done. We agreed that this would ultimately be decided by an arbitrator. Larry denied the grievance and sustained Harry’s termination.

When this goes to arbitration there are arguments to be made by both sides. The Union’s arguments are that the company violated Article 6 of the contract and that Harry was terminated without good cause. Also that the company violated Article 24 where it states that the decision of the SRB after an appeal shall be final and binding and is not subject to the grievance process.

The company argues that the SRB did not follow the preventable accident policy and that Harry’s accident was indeed preventable. Larry said if they had followed the policy, we never would have gotten this far and he would not have been "forced" to violate the contract.

These are the facts in the Harry Wallace bus pedestrian fatality accident and subsequent discharge. It has been a long process for us all; the Union, the company, Harry, and the membership. I knew there were a lot of questions floating around and I hope I have answered a lot of them. This has truly become "one hot potato", but this incident could happen to anyone of us. For this reason we are grateful for the support from our members and the kindness and concern that has been extended to Harry.

By Dan Francis, ATU 19 President

UNNECESARY BLIND SPOTS

By Dan Francis, ATU 19 Pres

" A single death is a tragedy, a million is a statistic". Sometimes from tragedy sprouts a reaction that will help prevent future tragedies from occurring. The Harry Wallace pedestrian accident fatality is destined to be such an incident.

Through Local 19’s investigation of this accident, and documents and information obtained, it became apparent that the blind spot caused by the height and placement of the fare box contributed to this accident in an extraordinary way. At the ATU NW Conference this past weekend, this issue came to the forefront. Seattle Local 587 shared extensive information and experience that they have had with equipment blind spots. They have had 4 bus pedestrian fatalities this past year, one of which was an operator that was struck by a maintenance worker. The common thread is blind spots caused by various equipment items. It became obvious this problem is not unique to Springs Transit.

The management strategy has been to expect the operator to simply look around the blind spots. This has been called, "rock and roll" and "bobbing and weaving". On our Gillig coaches there are four notable severe blind spots including the left mirror and post, the fare box, the right mirror and post and the front door visual obstruction. "The range of blind areas and the number of possible hazardous conjunctions of movements for those at risk, guarantees that it is impossible to contrive any Operator motions which can reliably overcome these unnecessary hazards for pedestrians, skaters, bicyclists, motorcyclists and even drivers; including those moving and higher speeds." The only way to eliminate or diminish the risk, is to eliminate or diminish the blind spot.

A number of decades ago the ATU took a stand for "exact fare" and fare box vaults to help prevent operators from being robbed. They successfully lobbied the transit industry, for the safety of the operators and changed forever the method of fare collection. More recently, because of the savage attacks against bus operators and escalating workplace violence, assaults and harassment the ATU successfully lobbied for improved state and federal legislation making such attacks a felony. I believe the issue of bus equipment blind spots that contribute to these terrible accidents will be such an issue.

There are many questions about this issue that only an investigative analysis will answer. Is this problem unique to certain style and manufactures of transit buses? Is there a problem with certain "added on" equipment? Are there other contributing factors such as the height of the bus operator? It is our goal to submit enough evidence on the scope of this problem to convince the ATU International to commission such a study and make it’s findings known to transit agencies, locals, bus and equipment manufactures and state and local officials.

Children’s Christmas Party 2003

(Do you recognize Santa?)

Reading the Christmas story.

The reason for the majority of preventable bus accidents is and always has been our willingness to take risks. While we support structural improvements that enhance safety, we must suggest that any real drop in accident statistics require that a change of individual driving habits be our No. 1 priority.

We sometimes risk driving at or faster than the speed limit, often disregarding weather or traffic conditions. We risk by driving to fast in the terminal. We risk by not signaling our intentions. We risk by being discourteous to both drivers and pedestrians, and we risk while driving in anger when we feel wronged by others. Some of us risk while having our attention distracted to the radio, cell phone or passenger questions.

Safety sometimes appears to be in the back of our minds rather than our first consideration. We constantly take risks, usually unnecessary risks and for that many pay a price.

From ATU19.org – "Your Rights" Link

1. DID MANAGEMENT ADEQUATELY WARN THE EMPLOYEE OF THE CONSEQUENCES OF HIS CONDUCT?

2. WAS MANAGEMENT'S RULE OR ORDER REASONABLY RELATED TO EFFICIENT AND SAFE OPERATIONS?

3. DID MANAGEMENT INVESTIGATE BEFORE ADMINISTERING THE DISCIPLINE?

4. WAS THE INVESTIGATION FAIR AND OBJECTIVE?

5. DID THE INVESTIGATION PRODUCE SUBSTANTIAL EVIDENCE OR PROOF OF GUILT?

6. WERE THE RULES, ORDERS AND PENALTIES APPLIED EVENHANDEDLY AND WITHOUT DISCRIMINATION TO ALL EMPLOYEES?

7. WAS THE PENALTY REASONABLY RELATED TO THE SERIOUSNESS OF THE OFFENSE AND THE PAST RECORD?

There may be circumstances which partially reduce the guilt of the employee and, therefore, might be used to plead for a reduction or lessening of the discipline imposed.

The idea of discipline is to get the offender back on track and not just to punish him or her for the offense. For less severe causes, therefore, the employer may be expected to begin with lighter disciplinary actions and resort to termination only when every attempt has been made to the correct the offending behavior.

For example, the following sequence of disciplinary actions is commonly employed:

1. Oral reprimand
2. Written reprimand
3. Short-term suspension (week or less)
4. Long-term suspension (30 days or less)
5. Termination