4/10/2014
In the Matter of the Arbitration
between
TRANSPORT WORKERS UNION, LOCAL 100
and
NEW YORK CITY TRANSIT AUTHORITY
OPINION AND AWARD
In an Award dated March 7, 2014, related to the parties’ so-called Broadbanding Agreement, the undersigned Arbitrator found that, “The Authority violated Section 4 (H) (1) of the Agreement by failing to conduct a system wide Pick for the Car Inspector A title in the Division of Car Equipment,” and he ordered that, “The Authority shall conduct a system wide pick for the title of Car Inspector A forthwith.” In addition, the Arbitrator retained “jurisdiction over any dispute that may arise in the implementation of this Award.” Thereafter, the Authority, in an effort to comply with this Award, prepared and posted a Pick for the Car Inspector A title CI-A for 202 CI-A jobs, which is the remaining number of CI-A employees in the Division of Car Equipment. 64 of the 292 posted CI-A jobs required that the employees picking these jobs be locked-in to the jobs for three years.
The Union promptly filed a grievance objecting to, among other things, the Authority’s putting only 202 jobs on the CI-A Pick instead of putting all of the approximately 579 jobs in the Division of Car Equipment on the Pick, and to the three year lock-in period for some of the jobs on the Pick. After the parties were unable to resolve their differences, and the Authority denied the grievance in the Step 1 and Step 2 decisions, the Arbitrator held a hearing on August 19, 2014, at the offices of the Transit Authority in New York City, regarding this grievance. At the hearing, the Arbitrator made several rulings, and, at the parties’ request, he is memorializing these rulings in this Opinion and Award.
Discussion
The full history of this case is set forth in the earlier Opinion and Award, so just a brief background is necessary here. Section 3.4 of the Agreement is entitled “DIVISION OF CAR EQUIPMENT.” Section 3.4(H) requires the Authority to “conduct one (1) annual system-wide pick for each title during odd numbered years and two system-wide picks for even numbered years beginning in 2006.” For many years, the parties did not implement the clear terms of this provision, but after the Union filed a grievance, the Arbitrator issued the Opinion and Award containing the findings referred to above. However, the Authority did not prepare and post a system wide Pick; instead, the Authority limited the number of jobs on the CI-A
Pick to 202, the number of employees who are currently in the CI-A title. The inclusion of only 202 jobs on the CI-A Pick is not a system wide Pick; moreover, it undermines the seniority rights of the CI-As by preventing them from exercising their seniority on all of the jobs in the Division of Car Equipment. For these reasons, the Arbitrator directed the Authority to prepare a new CI-A Pick for the Union’s review which would include all of the approximately 579 jobs in the Division of Car Equipment.
With respect to the Authority locking in employees on jobs for three years, or for any other period of time, the Arbitrator advised the parties that the Authority has the right under the Agreement to require lock-in periods for certain jobs on the CI-A Pick depending on the training required for the individual employee who picks the job, and the parties agreed that some of the lock-in jobs did not need a lock-in period for as long as three years, and that employees who did not need any training for the job they picked would not be required to have any lock-in period. The parties also agreed, at the suggestion of the Arbitrator, that the Authority would prepare a new CI-A Pick with all of the approximately 579 jobs in the Division of Car Equipment for the Union to review in accordance with the terms of the Agreement, that the parties would try to work out any disputes that arose related to this Pick, and that any disputes that could not be resolves would be submitted to the Arbitrator.
Therefore, based on the facts and circumstances of this case, and for the reasons explained, the Arbitrator issues the following,
Graham left his work area before 3:00 p.m. on the days in question. However, it insists, there were valid reasons for him to do so as well as to time up his route sheets. According to the Grievant:
–The “culture” among the employees in
his area was to finish 25 Innertite
inspections and then leave the work area;
–since he did not take lunch his official work day ended well before 3:00p.m.;
–on numerous occasions he began work before 7:00 a.m. in an attempt to catch residents seeking to bypass their meter. On those days he left early;
–the phone calls made from Long Island reflected stops at Ken Bassett’s house to pick him up or drop him off.
–as a relatively new member of the bypass team/Innertite team, he simply went along with the “culture” of the shop.
The Union submits that Graham’s testimony was largely corroborated by co-worker Salvatore Tuminello. Thus, it asserts the Company has failed to meet its burden of demonstrating the Grievant did anything wrong.
Finally, the Union notes that Graham was a long term employee at the time of his discharge. His record was discipline free, it suggests. As such, it argues, discharge is an excessive penalty even if I find the Grievant culpable of any misconduct.
For these reasons, the Union asks that I sustain its claim. As remedy, it seeks Graham’s reinstatement with full or nearly full back pay.
DISCUSSION AND FINDINGS
Did Graham engage in misconduct with respect to the days in question? If so, what is the appropriate penalty for his actions?
As to the first question, I find that Graham was culpable of serious infractions in the Fall of 2013. An examination of his cell phone records reveals that he was off route, way off route on a dozen or so (approximately eleven) occasions during this period. Most of these times he was in New Jersey anywhere from 12:50 p.m. to 2:45p.m. Graham’s hours of work were from 7:00 a.m. to 3:00 p.m. Even if he worked through lunch his day ended at 2:00 p.m. Yet he was more than fifteen miles from his area by that time on the days cited.
It is no coincidence that Graham lives in Jackson, New Jersey. It is also no coincidence that
on a number of days calls from his cell phone reveal he was travelling toward Jackson beginning perhaps as early as 12:00 or 12:30 p.m., depending on traffic.
The Grievant’s explanation that it was the “culture of the shop to complete his 25 visits and go home is unpersuasive. There is no evidence any supervisor told employees working with Graham they could do so. Even Tuminello, who testified on the Grievant’s behalf did not recall permission being given to leave early. While he acknowledged leaving before his shift ended, he stated unequivocally that he never left at 1:00 or 1:30. Clearly, even accounting for Tuminello’s later start time, he stayed far later at work than Graham did.
The Grievant’s excuses for his behavior are unavailing. He received overtime on those occasions when he was called out for a bypass investigation; i.e., when he was called into work for this assignment on his off hours. Also, while he may have reported before 7:00 a.m. on some days to catch a homeowner on his/her way to work, he surely did not do so on the number of days he left early, I am convinced. Equally unpersuasive is his claim that he began work on time and picked up or dropped Bassett off in Long Island, where the latter lives.
What this means is that the Grievant engaged in a pattern of time abuse. While there is no evidence he did so every day, he left work far earlier than he should have on a number of occasions during the Fall of 2013. He may have done so because supervision was lax or because he and Bassett simply shirked their duties. In either case the Grievant committed substantial misconduct, I conclude.
Should Graham’s actions result in his discharge? Under the unusual circumstances presented herein, I am convinced he should not be let go. To some extent, Graham’s claim regarding a “culture” was accurate. Employees did leave early, as Tuminello acknowledged, though none were as blatant about it as Graham, insofar as this record reveals.
Also, there is no doubt employees “timed up” their route sheets, as Graham did. Sheets for Tuminello and “John” Lussier reveal a similar practice. Thus, to this extent the Grievant did as others and there is no evidence anyone was disciplined for doing so.
In a similar context, I credit Tuminello’s recall that 25 Innertite visits were considered the norm.
While this did not absolve the Grievant from “taking off” when he did, it does reflect a general
expectation as to what a regular day’s work would
consist of.
In addition, Graham did acknowledge, to McPolin on November 22, 2013 and at the hearing, that he made mistakes. Though he clearly was worried about losing his job when he made these comments, his candor in doing so weighs in his favor, I find.
Finally, there is Graham’s work history to consider. He was a 26-year employee with the Company or its affiliates when he was dismissed. He had never been disciplined before these events, insofar as this record reveals. This factor mitigates the penalty of discharge, I conclude.
Though I am restoring Graham to duty, he should not be misled by his reinstatement. Having engaged in substantial misconduct, he is not entitled to any back pay nor benefits, though his seniority shall remain intact. Moreover, Graham is on unequivocal notice
4 Bassett was also dismissed but he chose to retire rather than face a disciplinary proceeding. That he must put in a full day’s work and that he may not leave early nor report late without the express prior approval of his supervisor. Nonetheless, and for the foregoing reasons, the Union’s grievance is sustained to the extent indicated in this Opinion. It is so ordered.
AWARD
The Company did not have just cause to discharge Bill Graham, effective December 5, 2013.
Bill Graham shall be reinstated forthwith.
Bill Graham’s time out of service shall be deemed a suspension without pay nor benefits, though his seniority shall remain intact.
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