January 10, 2017
In the Matter of the Arbitration
NEW YORK CITY TRANSIT AUTHORITY
"Authority" or "Employer"
LOCAL 100, TRANSPORT WORKERS UNION
For the Authority Thomas Latimer, Esq., Senior Director Labor Relations
Demetrius Crichlow, Assistant Chief, Subdivision C
Antoinette Y. Poinsette, General Superintendent
Therella Carmichael-Brown, Line Superintendent
For the Union Arthur Schwartz, Esq., Attorney
Jack Blazejewicz, Co-Director, Grievance & Discipline
Steve Downs, Staff Director
Crystal Young, Union Representative
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
This grievance protests the reduction in the number of weekly jobs for which Construction Flaggers may bid. The Union contends that the reduction violates a past practice of the parties and a fundamental right. The Authority notes that weekly bids are not contained in the Collective Bargaining Agreement and asserts that any reduction in posted slots is necessary to complete capital projects. A hearing on this matter was held before me on November 21, 2016. Thereafter, the parties submitted written closing arguments. When I received them I closed the record. This Opinion and Award follows.
DISCUSSION AND FINDINGS
After reviewing the record I find that the Union's grievance must be sustained, for the most part. This is so for a number of reasons.
First, I agree with the Onion that bid rights are fundamental terms and conditions of employment. As such, while not protected by contractual language, they are nonetheless enforceable in arbitration. As I have previously noted, after compensation nothing is more central to an employee than his/her hours and days of work.
Second, unlike Staton where I ruled for the Authority, I am convinced there has been a substantial reduction in the number of listed jobs. For example, in early 2015, 112 jobs were listed. That number was reduced to 82 in the corresponding 2016 period. Also, while the Union asserted that at least 80% of the jobs had been listed prior to 2015, the Authority offered no evidence to the contrary. Thus, I find, there has been a substantial reduction in the bids, as alleged by the Union.
This is not to suggest that all Construction Flagger posts must be listed on the bid. The Authority has asserted, without rebuttal, that only jobs of 3 or more days, Monday-Friday, are put up for bid and that late CPM work is not. Thus, any remedy must encompass this practice.
The Authority raised, essentially, two claims in support of its position. It insisted it must ensure that weekend work is covered and that Construction Flaggers were reluctant to pick the jobs at issue.
These arguments, however well-founded, do not permit the substantial decline in the number of listed jobs, I find. On the other hand, a "wait and see" attitude must prevail to determine if sustaining the grievance results in greater diminution of needed work projects, especially in light of the hiring and assignment of 100 new Construction Flaggers. To that end I shall permit the Authority to revisit this issue at the end of 2017 and before the implementation of the subsequent pick if it believes my Award has adversely impacted the completion of needed work. In addition, this determination shall not bar the Authority from informing the Union, in a given case, why a particular weekly job cannot be posted. The Union, of course, is free to dispute the proffered reasons for this action. Nonetheless, and for the foregoing reasons, the Union's grievance is sustained. The Authority is directed to restore the number of weekly bids to the same extent as existed in 2015. It is so ordered.
The Union's grievance is sustained.
The Authority shall restore the Construction Flagger weekly jobs to the same extent as existed in 2015, subject to the conditions set forth in this Opinion.
STATE OF NEW YORK
COUNTY OF NEW YORK
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.