NYC Transit Authority v. LOCAL 100 – Grievant: Abel Rivera

June 12, 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 Tom Latimer, Esq., Senior Director Ellen Jittrarachit, Esq., Hearing Officer For the Union Arthur Schwartz, Esq., Attorney Richard Rivera, Director Grievance and Discipline Steve Downs, Vice-President Abel Rivera, Grievant BEFORE: HOWARD C. EDELMAN, ESQ. , ARBITRATOR This grievance protests the Authority’s failure to pay time and one-half to Abel Rivera and other train Operators for work performed on February 4, and 13, 2014. A hearing on this matter was held before me on May 20, 2014, whereupon the record was closed. This Opinion and Award follows. The Union contends its grievance should be sustained. According to Rivera, he and others engaged in snow removal duties on the days in question at the direction of the Authority. He remembers clearing snow by operating a diesel train with a scraper and getting out of the cab, clearing out switches and making sure the tracks were free of snow. In the Union’s view, these activities fall within the definition of snow removal as defined in Section 3.1(c) of the Collective Bargaining Agreement. Accordingly, it asks for appropriate payments (an additional one-half hour pay for each hour worked) on the days in question. The Authority contends the Grievants are not entitled to time and one-half pay for the days in question. It maintains the work in question falls within the activities found by Arbitrator Collins in 1995 which were not compensable at time and one-half pay. Also, it argues, the kind of work Rivera performed was not “snow work” which was paid at time and one-half prior to March 1985. In addition, the Authority suggests that the kind of work assigned Rivera has been given to others without triggering extra pay. Thus, it asks that I deny the grievance. DISCUSSION AND FINDINGS After reviewing the record, I find that the Union’s grievance must be sustained. The work Rivera performed is different from the work Arbitrator Collins found not to be compensable at time and one-half pay. In that case, the Train Operator did not alight from his cab. Instead, he merely operated a train as he normally would for “his relationship to snow removal was no greater nor no less than that of any Train Operator…” Here, however, Rivera testified without contradiction that he came down from his cab to remove snow from switches. Clearly then, he engaged in direct, “hands on” snow removal duties unlike the Grievant in Arbitrator Collins’ case. I note the Authority’s contention that Rivera was not assigned to leave his cab and remove snow from switches. However, he was assigned snow removal duties. Consistent with that assignment, he removed snow from switches. Thus, unless he were told not to get onto the tracks, he acted within the scope of his assignment and there is no evidence he was barred from removing snow from switches. Accordingly, the Union’s claim must be sustained and the Grievants are to be paid one-half time for the work in question on February 4, 5 and 13, 2014. It is so ordered. Presumably, they were already paid straight time for the days in question. AWARD The Union’s grievance is sustained. Abel Rivera et al. shall be paid additional one-half hours pay for each hour worked on snow removal on February 4, 5 and 13, 2014.