October 13th, 2014
In the Matter of the Arbitration
between
NEW YORK CITY TRANSIT AUTHORITY
“Authority”
-and –
LOCAL 100, TRANSPORT WORKERS UNION
“Union”
APPEARANCES
For the Authority Baimusa Kamara, Esq., Senior Labor Director Ellen Jittrarachit, Esq., Hearing Officer
For the Union Ursula Levelt, Esq., Attorney Richard Rivera, Director, Grievance & Discipline Donald Yates, Grievant
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
This grievance protests the Authority’s dissemination of a memo dated March 11, 2014 with respect to its treatment of Americans with Disability Act (“ADA”) announcements. The Union contends that the memo, specifically the reference to ADA announcement violations “as serious infractions subject to disciplinary action in the first instance” violates the Collective Bargaining Agreement.
The relevant facts of this case are undisputed. For many years the Authority has sent bulletins to Union personnel indicating that failure to make ADA announcements is a “serious violation.” At the same time, however, penalties imposed upon Operators have generally followed the “minor track” procedures in the Collective Bargaining Agreement.
With the March 11, 2014 memo cited above, the Authority began assessing suspensions, usually ten days without pay, for the first ADA announcement offense. This action resulted in the instant grievance which was heard before me on September 16, 2014. When the parties submitted written closing arguments, I closed the record. This Opinion and Award follows. The Union relies on the Grievance Procedures set forth in Paragraph 4(a) of Section 2.1. That provision, it notes, lists the categories of “minor” and “major” violations. Presenting evidence as to how ADA violations were treated in the past, the Union insists the Authority is precluded from unilaterally elevating these infractions from the minor category into the major one. Hence, it asks that the Authority cease and desist from imposing ten day suspensions for this infraction as well as a directive that those who were suspended for ten days be made whole for lost wages and have their records adjusted accordingly. The Authority contends, initially, that the issue is not properly before me. It points out that Section 2.1 (A) (2) of the Collective Bargaining Agreement precludes the Contract Arbitrator from hearing any claim with respect to a “disciplinary action of a warning, reprimand, fine, suspension and/or dismissal… ” Since it has chosen to suspend employees ten days for ADA infractions, the Authority submits
do not have the jurisdiction to address the Union’s claim. The Authority cites numerous awards for this proposition. The Authority also cites its long history of disseminating memos which indicate that ADA violations are “serious” infractions. No grievance with respect to those memos was ever filed, it maintains. Thus, it concludes, the Union has acquiesced to its [Authority’s] contention that these are major violations.
In addition, the Authority characterizes the evidence put forth by the Union as inadequate. It notes, for example, in one instance an “observation ride” resulted in a warning. There is no evidence in that DAN history that the ride included the failure to make ADA announcements, it submits.
Furthermore, the Authority points out, on numerous occasions the penalty sought is modified, either by its Hearing Officer or a disciplinary Arbitrator. Consequently, it urges, there is no hard and fast “ten day suspension” rule for first time ADA violations. Also, the Authority characterizes ADA announcement infractions as “safety related violations” pursuant to Section 2.1 (C) (3) (A) of the Collective Bargaining Agreement. As such, it concludes, the ADA violation is simply one of many for which it may fashion an appropriate penalty which, as noted above, is subject to modification during the course of the grievance procedure.
For these reasons, the Authority concludes that the March 11, 2014 memo and penalties assessed for ADA announcement violations is proper. Accordingly, it asks me to deny the Union’s grievance.
DISCUSSION AND FINDINGS
Initially, I find, the dispute is properly before me. The alleged violation is of a contractual nature. In essence, the Union contended the Authority violated the Collective Bargaining Agreement by treating all ADA announcement violations as “major infractions.” It noted that the Collective Bargaining Agreement contains two categories – minor and major infractions –and it asserted, until now all ADA violations fell into the former category, not the latter. Thus, the Union’s claim is founded not on a determination by the Authority that ln an individual case a ten day suspension is justified for failure to make the announcements, but that in contravention of the Collective Bargaining Agreement and a departure from past practice, the Authority imposed a new rule concerning this type of violation.
These claims, whether founded or not, are grounded not in the Authority’s right to impose discipline based on the nature of the infraction, the employee’s past history and other factors which are cornerstones of the disciplinary process. Instead, they are based on a system-wide rule, newly initiated, which, in the Union’s view, directly contravenes the express language of Section 2.1 of the Agreement. Clearly, then, the dispute is of a contractual nature, not a disciplinary one. As to the merits of the dispute, I am convinced that the Union’s grievance must be sustained in part and denied in part. This is so for a number of reasons.
First, the ADA violation does not fall into the category of major infractions so as to require a ten
day suspension for the first offense. The labor contract contains the following language: The penalty for a serious violation such as AWOL, fraud, theft, gross insubordination, assault and serious preventable accidents will be based on the severity of the instant violation and/or the employee’s overall disciplinary record in accordance with existing standards.
It is true that “such as” does not mean the list which follows is all inclusive. “such as” is, of course, illustrative. However, the offenses listed therein are very serious. In essence they cover major, willful violations of unacceptable behavior or gross dereliction of duty. Failure to make ADA announcements falls into neither category, I find. It is either an oversight or carelessness or inattention to duty. Though the ramifications of a systemic failure to make ADA announcements may be severe; i.e., loss of federal funding; a Bus Operator’s failure to make such announcements is not the type envisioned by the list of violations enumerated above.
In this context, the practice of the parties supports the Union’s position, not the Authority’s. Though only two or three DAN histories were presented, it is clear the Authority did not seek to uniformly impose ten day suspensions for first time ADA announcement violations. While it may not have sought to order merely a Reinstruction in these instances, it is highly unlikely it initially attempted to impose a ten day suspension for a first infraction. Clearly,
the Authority significantly “upped the ante” with respect to these kinds of violations, a modification which contravenes the language relating to major or serious violations noted above.
Finally, on this issue, that the Authority categorized ADA announcement violations as serious infractions for many years via bulletins does not mean they were treated as such. There is no doubt penalties did not begin with a ten day suspension and find the Authority’s actions are controlling, not its characterization of the nature of the violation as “serious” or “major. Thus, I conclude, the decision to impose a ten day suspension for first time ADA offenses violates the Collective Bargaining Agreement. On the other hand, I do not agree with the Union that the Authority is required to impose only a reinstruction or very minor penalty for a first time
violation. The DAN’s cited by the Union do not indicate the penalty sought. The two or three reflect the resolution of the allegations relating to the violation. Even if other DAN’s with similar notations were introduced, the assertion that all first time offenses must result in a reinstruction is unpersuasive. There is no doubt the Authority has put the Union on notice for many years that it takes ADA violations seriously, as it should, both from a safety perspective for those who are visually impaired and from an economic one since systemic failures to make the announcements could impact the funding the Authority receives.
What this all means is that while the Authority may not routinely impose a ten day suspension for first time ADA violations, it need not follow the “minor infraction” progression of the Agreement. As it correctly noted, discipline initially proposed is often reduced; in some cases to a reinstruction which is not discipline at all.
What then must the Authority do given these findings? As is often the case in such matters, it must evaluate ADA violations on a case-by-case basis without the automatic imposition of a ten day suspension for a first time violation. Factors entering into its determination are to be the normal consideration given whenever discipline is imposed; e.g., nature of the offense (one failed announcement or many), operational considerations (were all methods of announcement functioning) and other relevant elements. I mention these factors for illustrative purposes only. Stated simply, each matter must be evaluated on its own merits as opposed to the imposition of a set penalty for any ADA announcement infraction.
Several additional comments are warranted. Recognize that Arbitration Awards, in the best of circumstances, provide finality. They either uphold the employer’s conduct or negate it. This one does neither, for while it bars a strict imposition of a specific penalty, it does not prescribe or proscribe to what extent lesser discipline may be imposed.
However, that is the nature of the disciplinary process in general, and progressive discipline in particular and disciplinary arbitrators will have to assess the reasonableness of penalties imposed on a case-by-case basis. Indeed, to avoid the pitfalls of such a process the parties are encouraged to agree upon specific penalties or non-penalties for ADA announcement violations. Nonetheless, I have concluded that the imposition of an identical penalty for this violation impermissibly places it into the “major infraction” category listed in the Collective Bargaining Agreement. The Authority is directed to revise its policies to evaluate these infractions on a case-by-case basis which determinations are subject to review by the disciplinary arbitrators. It is so ordered. To the extent the Union believes that employees have been harmed by any changes set forth in its March 11, 2014 memo, it may bring those before me on regularly scheduled dates. However, it is on notice I may defer these matters until they have been decided by disciplinary arbitrators.
AWARD
The Authority’s decision to consider ADA announcement violations as “major infraction” and to impose a ten day suspension for a first time offense violates the Collective Bargaining Agreement.
The Authority is directed to consider each alleged ADA announcement failure matter on a case-by-case basis in assessing discipline, if any.
I shall retain jurisdiction only in the event the Union contends that bargaining unit members have been harmed as a result of the violation referred to in (l) above.