May 2nd, 2014
In the Matter of the Arbitration
NEW YORK CITY TRANSIT AUTHORITY
LOCAL 100, TRANSPORT WOKERS UNION
For the Authority
Baimusa Kamara, Esq., Senior Labor Director Lauren Fasano, Esq., Labor Relations Attorney Patrick McGreal Director, Labor Relations Tony Watkins, Superintendent, Car Equipment Division Richard DeCesare, Senior Director, Car Equipment Division Robert Mesnard, Director, Car Equipment Division
For the Union
Arthur Z. Schwartz, Esq., Attorney Richard Rivera, Director, Grievance and Arbitration Shirley Martin, Division Chairperson, Car Equipment Division Grigoriy Dunichev, Delegate, Car Equipment Department
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
This grievance protests the Authority’s failure
to place 25 Maintainer Helper – Group B (MHB) jobs on the June 2013 pick. A hearing on this matter was held before me on April 1, 2014. Thereafter, counsel submitted numerous statements in support of their positions. This Opinion and Award follows.
The Union contends its grievance must be sustained. It maintains that since 25 jobs have to be filled, MHB’s should be given the opportunity to select from that total. Any reduction in that number on the pick violates MHB seniority, it submits.
The Union acknowledges there is no language in the Collective Bargaining Agreement which mandates that MHB’s are entitled to select any of the positions to be filled. However, it argues, at issue here is a “fundamental right” of employees. Citing numerous decisions by prior contract Arbitrators, the Union concludes that such rights must be enforced whether or not they are explicitly stated in the labor contract.
For these reasons the Union asks that I uphold its claim. As remedy, it seeks an order directing the Authority to post all 25 jobs in the next MHB pick, as well as related relief.
The Authority insists its decision to post fewer than 25 jobs for the MHB pick is proper. No contractual language requires it to do it observes.
Moreover, the Authority notes there are now only ten employees in the MHB title in the Division of Car Equipment (“DCE”). As such, it argues, there is no need to post jobs beyond that number. Indeed, it suggests, it posted seventeen such jobs in the June 2013 pick as an accommodation to the Onion. “No good deed goes unpunished,” in the Authority’s view.
In addition – the Authority alleges that at least one major component of the job – the operation of hilos – is routinely performed by Car Inspectors and Cleaners. There is no basis to assign this duty only to MHB’s, as the Authority sees it.
Finally, the Authority rejects the Union’s assertion that selecting from 25 jobs is a fundamental right or practice which must be enforced, even without supporting contractual language. It argues that this concept applies only to practices in existence prior to 1982. It notes that Section 1.3 states, in relevant part, “This Agreement constitutes the sole and entire existing Agreement between the parties, superseding all prior Agreements, oral and written…” That provision, having been first included in the 1982 Agreement, ratifies only fundamental practices in existence prior to that date, the Authority submits. Here, posted jobs have always equaled the number of MHB’s in DCE, the Authority alleges. Hence, it concludes, there is no practice by which the Union’s claim may be sustained. Accordingly, it asks me to deny the grievance.
DISCUSSION AND FINDINGS
After reviewing the record, I find that the Union’s grievance must be sustained. This is so for a number of reasons.
First, while the Collective Bargaining Agreement does not contain language which addresses this matter, there is no doubt this dispute involves a “fundamental practice” or “fundamental right” as defined by other Arbitrators. The issue before me centers on the right of MHB’s to pick jobs on the basis of seniority. As all are aware, seniority/pick rights lie at the very core of transit workers’ relationship to their jobs. These elements permit the employees to select the positions they desire on a seniority basis. It is difficult to conceive of a process more basic to the
job than the rights at issue here.
Contract Arbitrators have reached similar conclusions prior to this dispute. In March 2004, Arbitrator Richard Adelman determined that jobs could not be removed from the pick where they had been routinely performed by employees in the past. Here, the record reveals, 25 positions had been posted on the pick. Thus, these facts are substantially similar to those before Arbitrator Adelman, I find.
The Authority points out there are now only ten MHBs. In its view, then, only ten positions need be posted. I do not agree.
This is not a case where posting 25 slots will increase the number of MHB’ s in the unit. The Authority is free to employ any number of MHB’ s it wishes. Rather, this is a case of the choices MHB’ s should have. No matter which jobs MHB’ s bid, the remaining fifteen will be selected by Car Inspectors. As such, the cost of filling the positions is the same regardless of who picks which jobs.
Furthermore, to uphold the Authority’s position is to permit less senior Car Inspectors to select jobs over more senior MHB1 s, thereby ignoring the MHB’ s seniority rights. Such a result cannot be condoned, especially where the Authority has not presented a compelling case as to why the pick should be restricted to ten slots.
Nor does the Authority’s reliance on Section 1.3 support its position, I am convinced. It suggested that with the advent of the 1982 Agreement only established practices which existed prior thereto could be continued. I do not agree. In April 2011,
(DCE Car Cleaners Pick), Arbitrator Adelman upheld a practice regarding Car Cleaner assignments which did not exist prior to 1962. Thus, I conclude, the practice need not have been in existence when the 1982 Agreement was consummated.
It may well be, as the Authority suggested, that the number of picks has been reduced to match the number of MHB’s in the unit. However, the overwhelming principle at issue is the right to pick a job on a seniority basis by title. That is, as noted above, a fundamental right which has been abridged here, I have found.
Finally, the Authority’s implication that the grievance is a “back door” maneuver intended to require it to hire more MHB’ s is misplaced.
Nothing in this Award remotely suggests that the Authority must hire additional MHE’s.
For these reasons, the Union’s grievance is sustained. The Authority is directed to post as many positions as it intends to fill on the MHB pick. It is so ordered.
The Authority violated the Collective Bargaining Agreement by failing to place 25 Maintainer Helper – Group B jobs on the June 2013 pick. The Union’ s grievance is sustained. The Authority it directed to post as many positions as it intends to fill on the MHB pick.