August 17, 2015
In the Matter of the Arbitration
NEW YORK CITY TRANSIT AUTHORITY
LOCAL 100, TRANSPORT WORKERS UNION
For the Employer Baimusa Kamara, Esq., Senior Director
Lauren Fasano, Esq., Attorney
Michael Morfates, Director
For the Union Arthur Schwartz, Esq., Counsel
Sami Ali, Grievant
BEFORE : HOWARD C . EDELMAN, ESQ. 1 ARBITRATOR
This grievance protests the Authority’s decision to grant terminal vacation pay to Sami Ali based on his last day of work rather than on the job he picked. A hearing on this matter was held before me on July 2, 2015. At its conclusion I closed the record. This Opinion and Award follows.
The Union contends its grievance should be sustained based on what it deems is the plain language of the Collective Bargaining Agreement. Section 2. 4 it notes, grants vacation pay to an employee equal to what he/she “would have earned had he/she been working during that period…” It points out Ali picked a run which went into effect on April 6, 2014. His last day of work 1r1as April 3, 2014 followed by two RDU’ s. He returned on May 31, 2014, after using accrued vacation time from April 9, 2014 on.
In the Union’s view Section 2.4 mandates payment on the run which would have been in effect during Ali’s vacation period. Since that was the run picked as opposed to the run he previously worked, the Union concludes that Ali must receive vacation pay for the former run, not the latter. Accordingly, it asks that sustain its claim which grants him approximately over one hour more than the pay he received.
The Authority contends the grievance must be denied. It asserts that for as long as anyone can remember vacation pay has been based on the run last worked prior to the vacation period. Hence, it insists, Ali was properly compensated in accordance with this long standing practice.
In addition, the Authority asserts that equitable considerations support its position. If the grievance were upheld, employees would simply pick a run with the greatest number of hours even though they had no intention of working it. Such a result should not be countenanced, the Authority submits. to deny the Union’s claim.
Where the parties’ past practice conflicts with the unequivocal language of the Agreement, the latter must prevail. This is so because the language to which they agreed represents their mutual intent at the highest levels of union-employer involvement.
Applying this principle to the facts before me means that the Union’s grievance must be sustained. Section 2.4 could not be clearer. It mandates vacation pay “equal to what the employee would have earned had he/she been working during that period…” Ali would have been working his picked run, not his prior one. Thus, the Authority’s interpretation; i.e., that the “last day worked,” the basis for determining vacation pay is contrary to the unequivocal language in Section 2.4.
The Authority maintained its long standing practice was dispositive. However, as noted above, that practice must fail in light of the manifest provision in dispute.
One final comment is appropriate. While Ali’s grievance must be sustained, this finding does not apply to past claims. Until this case arose, the Authority had the right to expect that it complied with the Agreement by selecting the “last day worked” as the basis for vacation payment. After all, it had followed this practice for many years, without complaint. Nonetheless, and for the foregoing reasons, the Union’s grievance is sustained with respect to Ali. It is so ordered.
The Union’s grievance concerning vacation pay due Sami Ali is sustained.
The Authority shall compensate Sami Ali the difference between the vacation pay granted and the vacation pay he would have earned had the run he picked in March 2014 been utilized for such payment.
HOWARD C. EDELMAN, ESQ. ARBITRATOR