May 20, 2015
In the Matter of the Arbitration
between
NEW YORK CITY TRANSIT AUTHORITY
“Employer”
and
TRANSPORT WORKERS UNION, LOCAL 100
“Union”
APPEARANCES
For the Employer
Baimusa Kamara, Esq., Senior Director, Labor Relations Carly Hamilton, Esq., Labor Relations Representative Joseph Bromfield, Vice-President, CMO, division of Car Equipment Kevin Bress, Senior Director, Training Bob Mesnard, Director of Payroll and Employee Availability Lonnie Meeks, Assistant Chief Mechanical Officer,
Division of Car Equipment Rosamund Duff, General Superintendent, CIOH Shop, Division of Car Equipment Raymond DelValle, Jr., Acting General Superintendent,
Division of Car Equipment Patrick McGreal, Senior Labor Relations Administrator Richard DeCesare, Senior Director of Car Equipment Ray Schineis, Superintendent, HVAC Shop, Division of Car Equipment Guillermo Dip, Senior Director, Operations Support/Administration, Subways
For the Union
Arthur Schwartz, Esq., Attorney Jack Blazejewicz, Co-Director, Grievance and Discipline Nelson Rivera, Vice-President Shirley Martin, Division Chair, Grigory Dunichev, Vice-Chair Overhaul Shops Eric Domena, Chairman, 207th Street Yvette Naylor, Chairman ABM
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
BACKGROUND
This grievance protests various features of the Authority’s proposed pick in the Department of Car Equipment (“DCE”). The Union contends the pick, as a whole, violates the Collective Bargaining Agreement, past practices and prior Awards of Arbitrators. It asks for substantial modifications in the pick. The Authority asserts the grievance is, for the most part, not arbitrable as well as without merit.
Hearings on this matter were held on various dates in late 2014 and early 2015, the last one being March 17, 2015. Thereafter, the parties submitted written closing arguments. When I received them closed the record. This Opinion and Award follows.
The Union contends its grievance must be sustained. It asserts that many arbitrators have decided pick cases even. in the absence of contractual language encompassing the procedures and jobs in question. This is so, it stresses, because these procedures are fundamental to the relationship of the parties which may not be altered without bilateral agreement.
As to the specifics of this case, the Union raises the following concerns:
Improper labeling of jobs as “scheduled” or “unscheduled.” The Union claims that in the past
they were listed by individual craft. When broadbanding occurred, the prior description was listed (e.g., “was ABM job”). The same notation should exist now, the Union insists.
Lock-ins The Union contends that since CIB’ s are now trained in all specialties, there should be no lock-in for any such job. Also, it asserts, to the extent lock-ins are necessary, they are too long and will otherwise scare off employees who would want to bid on them. Furthermore, it contends, any employee who worked the job in question in the past should be immune from a lock-in. In addition, the Union maintains that lock-ins should be geared to the training on the CI-A pick, as follows:
1 These concerns, as well as the Authority’s responses to them, are summarized in the interest of expediting these findings.
Training Lock-in
Five days or less 5-15 days or less 15-25 days or less 25+ days or less -no lock-in on CME #33 job. None 1 year 2 years 3 years
Finally, the Union argues that ce rtain jobs
assigned to house maintenance belong on the pick.
They should not be labeled “utility work” when, in fact, the same functions at the same site are routinely performed, it submits. Accordingly, the Union asks for a sustaining Award, as indicated above.
The Authority asserts that the pick should not be disturbed. It insists there is no contractual support for any aspect of the Union’s claim. Consequently, the only arena for redress is the bargaining table, as the Authority sees it.
As to the merits of the matter, the Authority argues that since specialty titles in DCE no longer exist, there is no longer a need for specific delineation of tasks (e.g., “ABM job”). Oliveri I and II (arb. Richard Adelman); it need only list “scheduled” or “unscheduled” next to the jobs in question.
Concerning lock-ins, the Authority points out that Arbitrator Adelman permitted it to lock in CI-A jobs depending on the training required for individual employees who pick them. In this context, the Authority insists, the Union has offered no concrete evidence for the lock-in schedule it proposes. Instead, the Authority argues, the testimony of various supervisors and managers supports the lock-ins requested for different posts.
Furthermore, the Authority asserts that lock-ins do not attach to the job, but to the employees. Those who work the previous pick on the same job will not have to serve a lock-in period, it submits. Accordingly, and for these reasons, the Authority asks me to deny the Union’s
grievance in its entirety.
DISCUSSION AND FINDINGS
Several introductory comments are appropriate. The Authority contested the arbitrability of the Union’s claim on the grounds it has no contractual basis. While that argument is tenable and even persuasive in many instances, it is not controlling here. As I and other Arbitrators have noted, the issue of picks is fundamental to the parties’ relationship. After wages and benefits, the details, duration and location of the job to be picked is of
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tantamount importance to employees. They have a right to know where and when they will be working and to protest changes sought to be introduced. That, I find, is the nature of the Union’s claim, notwithstanding the Authority’s contention to the contrary. However, the record reveals that the parties agreed to broadbanding of jobs formerly delineated (e.g., “Was ABM job”) on the pick. Also, the terms “scheduled,” “unschdeduled,” or “utility” are sufficiently descriptive to inform employees what is expected of them. Indeed, an examination of
location alone will usually give the employee a strong
indication as to the duties to be performed. Thus, I conclude, the accompanying designations in the Authority’s proposed pick may remain.
Lock-ins, however, are a different matter. Just as the Authority gained flexibility by broadbanding, it may not use that factor to impermissibly restrict employees from picking out of a job. By creating a CI-B generalist, as it were, the Authority recognized that jobs, with appropriate training, could be performed by any CI-B. This determination leads to the following conclusions.
Except as noted below, CI-B and CME jobs shall have no lock-ins. Just as a lock-in period is specific to the individual, so may the training period be. The Authority has the right to ensure employees are adequately trained and may vary the period depending on the particular skills or work experience of the individual involved. However, the Authority cannot have it both ways. That is, it cannot say on one hand that employees are generalists and presumed to have basic knowledge to perform any DCE task and, at the same time, suggest that a lock-in period is necessary because the background required is so specialized that there must be one. Indeed, as the Union correctly noted, the Authority has not won a longer pick period for DCE employees and has not sought to impose lock-ins for CI-B’ s or CME’ s in the past. It may not do so now, I find. The exception to this finding involves Overhead Crane Operator posts. This job involves special training, risk and hazards. In many instances, this work was filled by outside vendors, the record reveals, and to avoid possibly disastrous consequences, I shall grant the Authority’s lock-in requests for these jobs.
As to other CI-A jobs, I find that a lock-in period is necessary, but that the ones proposed by the Authority are unreasonably long. The principle of relating a lock-in period to training makes sense and I shall order that the following schedule be adopted with one caveat; i.e., that the Authority may petition for a lock-in period in any job after one pick if it can demonstrate a “compelling need” to do so.
Training Lock-In
14 days or fewer one pick 15-25 days two picks, 26 or more three picks. Any employee who has worked in a job for one full pick during the last three picks or years, whichever is shorter, shall not be locked in.
Finally, I shall retain jurisdiction in the event a dispute arises as to the implementation of this finding, especially as it relates to a single job or single set of jobs. Accordingly, and for the foregoing reasons the Union’s grievance is sustained to the extent indicated in this Opinion. It is so ordered.
AWARD
The proposed Department of Car Equipment pick shall be implemented as set forth in this Opinion.
I shall retain jurisdiction in the event a dispute arises as to the implementation of this Award.