June 8, 2015
In the Matter of the Arbitration
New York City Transit Authority
For the Authority:
Baimusa Kamara, Esq., Senior Director
Carly Hamilton, Esq., Labor Relations Representative
John Schmidt, Director, Labor Relations
Matthew Varghese, General Superintendent
For the Union:
Arthur Schwartz, Esq., Counsel
Sarah Bouskila, Intern
Jack Blazejewicz, Co-Director, Grievance & Discipline
Rosario Parlanti, TWU Representative
Jean J. Rivas, Grievant
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
These grievances protest the Authority’s decision to deny pre-bid jobs to Jimmy Rivas and “John O’Mara based on their attendance records. A hearing on this matter was held before me on May 19, 2015. At its conclusion I closed the record. This Opinion and Award follows.
The Union contends the Authority impermissibly relied on the attendance records of Rivas and O’Mara to deny them the pre-bid jobs they sought. Though Rivas had 39 absences in 16 instances and O’Mara had 77 absences in 55 instances in their prior three years of service, the Union notes that “good attendance” was not listed as a qualification for the jobs in question. Also, it argues, neither had been disciplined for this reason which, the Union claims, was the only action the Authority could take against the two.
In support of these positions, the Union relies on the Ayala decision (Adelman, arb.) which, it maintains, warrants a sustaining Award here. Accordingly, it asks me to award the positions for which Rivas and O’Mara bid to them.
The Authority maintains that the positions for which Rivas and O’Mara bid are largely unsupervised. They are dispatched to do repair elevators and escalators, it notes. As such, it contends, it is important for them to regularly report for duty given this critical function especially since there are only five such individuals who can perform this task.
Moreover, the Authority argues, the Ayala finding supports its position here. It notes Arbitrator Adelman’s conclusion that:
For positions that are unsupervised, the Arbitrator ruled that an employees’ sick leave record (for three years) is a valid factor in appointing employees to this position.
In this case, the Authority does not question the legitimacy of doctors’ notes provided by Rivas or O’Mara. Instead, it argues, as in Ayala it may determine that absence records of the types presented here are severe enough to disqualify an employee seeking a largely unsupervised job. Accordingly, it asks that I deny the Union’s grievances.
DISCUSSION AND FINDINGS
The job which Rivas and O’Mara bid upon are largely unsupervised, I find. Though the employees may be housed at a central location(s), they are dispatched to perform repairs to elevators and escalators. In doing so, they are not under the direct supervision as, say, a maintainer who works on the tracks with another supervisor nearby. Thus, while the Authority is advised to list “attendance” as a qualifying factor when the jobs are awarded, its failure to do so did not bar it from considering this element in deciding who should be awarded the posts in question.
On the other hand, Section 3.5(L)(1) bars the Authority from “unreasonably disregard[ing] the normal seniority rights of any employee…” Thus, seniority is clearly a significant factor in determining who shall be awarded jobs.
I have reviewed the record in this context. Based upon that review, I find that the Authority unreasonably disregarded Rivas’s seniority, but not O’Mara’s. The reason for this conclusion is both simple and obvious. Both had more seniority than the successful bidder. Indeed, Rivas had worked the job before. Rivas’ attendance, though far from perfect, was certainly not so poor as to permit the Authority to ignore his seniority. In three years he used three days more than the sick leave allotted all bargaining unit members. There certainly were no issues related to his competence and I am not convinced that his absences sorely compromised the Authority’s ability to repair elevators and escalators in a reasonable period of time. O’Mara’s attendance, by contrast, was abysmal. He was out of work 79 times in three years, more than twice the allotted leave. Such a record hampers the effective functioning of a small set of employees devoted to a significant function – repairing elevators and escalators for the riding public.
Given this determination, Rivas is to be re-assigned to the job he bid forthwith. No remedy is due O’Mara. Accordingly, and for the foregoing reasons, the Union’s grievance is sustained to the extent indicated in this Opinion. It is so ordered.
The grievance of Jean J. Rivas is sustained. Joan J. Rivas shall be assigned to the job he bid.
The grievance of “John” O’Mara is not sustained.