November 23, 2015
In the Matter of the Arbitration
between
NEW YORK CITY TRANSIT AUTHORITY
“Authority”
and
LOCAL 100, TRANSPORT WORKERS UNION
“Union”
APPEARANCES
For the Authority
Thomas Latimer, Esq., Senior Labor Director
For the Union
Arthur Schwartz, Esq., Attorney
Jack Blazejewicz, Co-Director, Grievance & Discipline
Rosario Parlanti, TWO Representative
Paul Hartman, Grievant
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
This grievance involves the Authority’s failure to grant Paul Hartman and several others paid rest time on October 29, 2012. A hearing on this matter was held before me on November 16, 2015. At its conclusion I closed the record. This Opinion and Award follows. The Union contends its grievance should be sustained. It notes that Hartman and others remained at the work site during the superstorm Sandy period in 2012. According to the Union, the Grievants could not realistically have been expected to go home and return to duty on the days in question. Moreover, the Union argues, its position is supported by a memo sent from Authority Senior Vice-President Joe Leader to Union Vice-President Tony Utano. Hence it asks me to sustain its claim and order appropriate payments to the Grievants. The Authority asserts that Hartman et al. are not entitled to pay for the hours not worked. According to General Superintendent Christopher Leone, the employees were told to go home but refused. While they were paid for the time they worked, they should not have been paid for non-working time, the Authority insists.
Also, the Authority argues, these employees were not needed to work on October 28, 2012. However, since they reported they were assigned tasks, the Authority submits. Consequently, it alleges, any pay for time not worked is unjustified. Accordingly, it asks me to deny the grievance.
DISCUSSION AND FINDINGS
The record reveals the following:
Hartman and others worked their regular shift from 2:00 p.m. to 10:00 p.m. on October 28, 2012.
2. They also worked from 10:00 p.m. to 6:00 a.m. on October 28-29, 2012.
3. They rested from 6:00 a.m. to 2:00 p.m. on October 29, 2012.
4. They worked their regular shift from 2:00 p.m. to 10:00 p.m. on October 29, 2012.
Under normal conditions, the employees would not be entitled to pay for the October 29, 2012 rest period. This is especially true if, as Superintendent Leone indicated, they were told to go home on the morning of October 29, 2012. However, these were not normal circumstances. The memo from Senior Vice-President Joseph Leader on October 26, 2012 states, in relevant part, that employees are to be paid overtime for ” … any hours of work, staging and/or rest while the employees are on the property.” The Grievants were on the property and at rest from 6:00 a.m. to 2:00 p.m. As such, they were clearly entitled to overtime pay for this period, I find. I recognize that Superintendent Leone told the employees to leave the property. However, the memo goes on to say that if employees “can make it home and request to do so” they should be allowed to leave. The employees in this dispute did not request to leave. Thus, despite Leone’s credible testimony they are entitled to the pay requested. Finally, I note the Authority’s claim that the grievance is untimely. However, I credit Hartman’s claim that the payroll department informed him the overtime payments would be forthcoming, and that the grievance was filed only after it became clear they would not be made. Thus, while the Union is reminded that the submission of grievances should not be delayed based on promises to pay, the claim is properly before me. Accordingly, the Union’s grievance is sustained and the Authority is directed to make Hartman et al. whole for lost overtime payments for eight hours. It is so ordered.
AWARD
The Union’s grievance is timely. The Authority violated the Collective Bargaining Agreement by failing to pay Paul Hartman et al. for eight hours at the overtime rate in effect on October 29, 2013. The Authority shall compensate Paul Hartman et al. for eight hours at the overtime rate in effect on October 29, 2013.
I, Howard C. Edelman, Esq., do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument, which is my Award.