FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between UNITED TRANSPORTATION UNION,LOCAL NO. 1715, Union, FMCS No. 12-02864and TRANSIT MANAGEMENT OF CHARLOTTE, INC., Employer._______________________________________________/

OPINION OF THE ARBITRATOR

October 5, 2012

After a Hearing Held August 24, 2012 at The Charlotte Transportation Center, 3145 South Tryon Street, Charlotte, NC

For the Union:

Calvin K. StudivantAlternate Vice President Bus EastUnited Transportation Union36 Sewall AvenueClifton, New Jersey 07011

For the Employer:

John B. Smith Smith Law Firm, PC Suite 710 5950 Fairview Road Charlotte, North Carolina 28210

The Nature of the Grievance

Grievant is a bus driver or “operator” employed by Transit Management of

Charlotte, Inc. (“Employer” or “Company”). Operators are represented by Local 1715

of the United Transportation Union (“Union”). The collective bargaining agreement

between the parties is effective from December 4, 2011 through June 30, 2013

(“CBA”).

Each operator is assigned to one of two Company facilities, the Charlotte

Transportation Center or the Davidson Garage; Grievant is assigned to the latter.

Although an operator may be assigned to a specific facility, his driving assignment

may not begin there. For example, Grievant’s driving assignment begins at the

Charlotte Transportation Center.

An operator is given a run assignment sheet known as a “paddle sheet”, which

details his route. CX 1. The paddle sheet specifies a “Report Time”, also called

“Signon” time. An operator who is assigned to pull a bus out of a garage is required to

personally sign a Dispatch Signon Sheet at the garage. UX 5. Other operators have a

choice of personally signing-on at their assigned garage or calling in to a dispatcher at

that garage. UX 1. The paddle sheet also specifies the operator’s “Start Time”, the time

he is to be at his assigned bus.

Grievant is assigned to bus route number 3066.1 CX 1. His Report or Signon

Time is 1:21 pm; his Start Time is 1:31 pm; and his bus is scheduled to leave Charlotte 1 Technically the numbers refer to route numbers, but bus number is used for simplicity.

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Transportation Center at 1:41 pm.

Grievant’s preference for starting work is to drive to the Davidson Garage by

1:21 in the afternoon and sign in personally with the dispatcher there. He then catches

the number 23 bus at 1:29, which takes him to the Charlotte Transportation Center

about 1:36, where he is to relieve the operator of the number 3066 bus. The problem

with Grievant’s preference is that he is due at the Charlotte Transportation Center at

1:31.

Because of Grievant’s tardiness, he was charged with “miss-outs” on March 13,

14, 20, and 21, 2012. A “miss-out” is described in Article IX of the CBA, although its

meaning is disputed:

Section A. Report-in Procedure. Operators not previously excused by the Company must report for their assignments at the scheduled time or they will be charged with a miss-out. When an operator is prevented from reporting on time due to illness, injury, Union business, or bereavement leave, they must notify the Company forty five (45) minutes prior to their scheduled sign-on time or he/she will be charged with a miss-out (in accordance with the provisions of Article IX Section C).

When Operators are unable to complete their assignment once they have reported for work, the Operator will be permitted to lay off for a bonafide illness or other acceptable reasons.

Any employee who has missed out or who has been laying off (which includes employees off sick) must report for duty before 5:00 P.M. in order to be assigned work the next morning. An employee reporting for an evening run must report before 10:00 A.M. of the same day. In either case, an employee failing to so report will be held off his/her assignment until the next day.

If a driver gets off sick or has a miss-out after 3:00 P.M., he/she has until 9:00 P.M. to call in to report for work for the following a.m. If a driver has a doctor’s

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appointment after 3:00 P.M. and the doctor clears him/her to work the next day he/she may report in by telephone or in person to the dispatcher. If an operator is excused for a day it is understood that he/she will work his/her next scheduled workday.

In the event an operator is delayed in reaching the relief point or dispatch office due to a Company vehicle (bus or Company auto) being late that would have enabled him/her to arrive at the relief point or dispatch office on time, he/she will not be charged with a miss-out and will be entitled to pick up his/her run or will be paid the hours of his/her assignment. Application of this paragraph shall not result in the payment of run around time to another operator. ***

Section C. Miss-Out Procedure. Operators who miss out will be allowed to work provided work is available as determined by the Dispatcher. If work is available, the Dispatcher will assign the employee a new report time. The driver must report by that time and he/she will stand last out at the bottom of the extra board and will be required to work whatever assignment falls to him/her (up to one full run). The operator will be paid for all time worked for the time he/she reports, but will lose his/her guarantee for the day and will not be guaranteed the two hour report time. Three (3) times in a rolling twelve month (12) month period, the operator will still be charged with a miss-out for the day but will not receive a point if he/she reports for work and receives an assignment from the Dispatcher. It is understood that the operator will be allowed to work his/her next regular assignment. Operators who call or report in person after one hour will not be allowed to work. ***

Following the third-step grievance meeting, the Company dropped the March

13 and 14 miss-outs, but sustained the miss-outs on March 20 and 21, 2012. UX 1.

Grievant was charged with a miss-out on March 20 because he arrived at the Charlotte

Transportation Center “about four (4) minutes past [his] start time of 1:31 p.m.” UX 7,

Grievant’s third-step grievance letter, 3/26/12. After having missed out on March 20,

Grievant was charged with another miss-out on March 21 because he failed to “report

before 10:00 A.M. of the same day”, i.e., before 10:00 A.M. on March 21. Id.

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The Company’s Position

In its brief, the Company explains the rationale for the miss-out rule:

Run 3066 required that [Grievant] be at his relief point at the Transportation Center by 1:31 p.m. Being at the relief point by the appropriate time is essential to the smooth operation of the bus system for the public and to relieve the other driver ending at that time. …

When drivers have runs, such as [Grievant’s] 3066, which relieve a bus and driver which is already in service and which are not pulling out from a garage, they are required to be at their relief point at the time designated on the paddle and may simply phone in. Drivers who choose to physically sign in at a garage may do so provided they are at their relief point on time. [A Davidson Garage dispatcher] testified that she is familiar with all of the operators that report to her at the Davidson Street Garage and their runs. She testified that of the 33 reports that she has, 20 call in.

Company Brief @ 3. The Company argues that the miss-out language is clear and was

correctly applied to Grievant. Company Brief @ 8-9.

The Company views the dispute as basically being a carry-over from collective

bargaining about payment for travel time on Company buses. Company Brief @ 5-6,

14-16. Grievant, after all, is not simply a rank-and-file operator but the General

Chairman of the Union. Company Brief @ 11. The Company prevailed in bargaining,

and its position was embodied in Article X of the CBA, entitled “Check In-Travel

Time”. CX 3.

Under Article X, operators with regular runs, including Grievant, are paid for 10

minutes of check-in time. Id., § B. In Grievant’s case, this is the period from 1:21, his

Report Time, until 1:31, his Start Time. Operators with regular runs “that do not begin

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and end at the same location”, are paid an additional 13 minutes for travel time. Id., §

C.2 Since Grievant’s route begins at the Charlotte Transportation Center and ends at

the Davidson Garage, he is paid for 13 minutes of travel time. CX 4.

The Company strongly urges the arbitrator not to “re-write the agreement” and

offers this authority in support of its position:

“If a party attempts, but fails, in contract negotiations, to include a specific provision in the Agreement, arbitrators will hesitate to read such provision into the Agreement through the process of interpretation. In a nutshell, a party may not obtain 'through arbitration what it could not acquire through negotiation'.” Elkouri and Elkouri, How Arbitration Works, 6th Edition, p 454, quoting from U.S. Postal Ser. v. The Postal Workers, 204 Fed. 3rd 523, 530, 163 LRRM 2577 (4th Cir. 2000). The reason [Grievant] and the Union are asserting that he physically must sign in with his dispatcher is because if he did, then an argument could be made for additional travel time pay as was proposed by the Union in negotiations and specifically rejected and not made part of the Contract.

Company Brief @ 14.

The Union’s Position

The Union’s position and the fundamental issue in the case can be gleaned from

the following passages in the Union’s Brief:

[The Company’s] Dispatch Sign-on Sheet, for all Bus Operators assigned to and dispatched from Davidson Garage, indicates that the Bus Operator assigned to Run 3066 must report to Davidson Garage at 1:21 p.m. (Ex. U5). Union Brief @ 2; emphasis supplied.

[The Company’s] Drivers Alert notice to all Bus Operators and Supervisors states, “All Supervisors and Operators assigned to the Davidson Facility should start reporting to the new location on Monday morning.” This document is still posted in the Bus Operators break room (Ex. U2). Union

2 Operators on certain routes not relevant here may be paid more.

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Brief @ 2; emphasis supplied.

Run 3066, to which [Grievant] was assigned, have a scheduled report time at Davidson Garage of 1:21 p.m. and a scheduled start time to pick up his assigned bus at the Transportation Center of 1:31 p.m. Union Brief @ 2.

Article X, Check In-Travel Time, Section B., Check-In Time of the C.B.A. provides ten (10) minutes for Bus Operators to check-in after their initial report at their designated garage. Union Brief @ 2; emphasis supplied.

On March 20, 2012, … [Grievant] reported to the Davidson Garage and signed on run 3066 approximately 1:18 p.m. and proceeded to the bus stop to catch the Number 23 bus to the Transportation Center. [Grievant] again arrived at approximately 1:35 p.m. Upon arrival, [Grievant] was prevented from working by [the] Station Manager []. [The Station Manager] informed [Grievant] that he had given his run away … . [Grievant] was not informed he had been charged with a “miss-out” … . Union Brief @ 5; emphasis supplied.

On March 21, 2012, … [Grievant] reported to the Davidson Garage approximately 1:16 p.m. to sign in for run 3066, but was unable to do so because another operator had signed onto his run prior to 1:21 p.m. When [Grievant] inquired into why his run had been given away, [a] Dispatcher [] replied that [Grievant] had received “a miss-out and was supposed to report back into work,” and that he should “wait around and speak with [the] Assistant Superintendent of Operations.” [The Assistant Superintendent of Operations] stated that [Grievant] had “two options, take a union business day or go to the bottom of the extra board and wait for an assignment.” Because [Grievant] was unaware that he was given a miss-out on March 20, 2012, he declined to select from the Company’s options and expressed that the Company’s actions were in violation of Section C. of [Article IX of] the C.B.A. Union Brief @ 6; emphasis supplied.

… [Grievant] is not required to report by phone. [Grievant] reports and check-in at the Davidson Garage as per the C.B.A., [the Company’s] Dispatch Sign-on Sheet & [the Company’s] Drivers Alert notice (Ex. 6, C.B.A., Article IX (A), Article X, (B) & [the Company’s] Drivers Alert, U2). Union Brief @ 7; emphasis supplied.Bus Operators assigned to the Davidson Garage location must report to and check-in with the Davidson Garage Dispatcher for daily assignments (Ex. U2). Pursuant to Article X (B) of the C.B.A., Bus Operators must check in 10

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minutes prior to their start time (Ex. 6, C.B.A. Article X). Following check-in, Bus Operators then travel to either the Charlotte Transportation Center or another specific relief point to pick up their buses and begin their runs. Union Brief @ 8; emphasis supplied.

The Issue

Per CBA, Article XXVII, § C, Step V, the parties stipulated that the issue

presented is “miss-out/report-in procedures under Article IX”. However, it seems

clear from the portions of the Union’s brief italicized above that the issue boils down

to the meaning of the phrase, “must report for their assignments at the scheduled

time”.

The Union states its case as follows:

The C.B.A. unequivocally states that an operator “will not be charged with a ‘miss-out’ … if he/she reports for their assignments at the scheduled report time (Ex. 6, C.B.A. Article IX (A)). This is exactly what transpired in [Grievant’s] case.

Union Brief @ 9.

The Company is equally assertive in stating its case:

[T]he language of Article IX is clear. Bus operators must be at their bus by their start time or they will be charged a miss-out. There can be no other interpretation.

Company Brief @ 9.

Analysis

The Company urges a semantical approach to explicating “report” and

“assignment”. Company Brief @ 8-9. Because both words are used with multiple

meanings by the parties, by the witnesses, and in the exhibits, the arbitrator prefers a

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more operational approach. First, the arbitrator notes that different phrases are used in

the first paragraph of Article IX, § A: “report for their assignments at the scheduled

time” and “scheduled sign-on time”. The difference suggests that reporting for

assignment is different than signing on, notwithstanding the fact that, on the Signon

Sheet itself, the sign-on time is referred to as “Report” time. UX 5.

At least three witnesses, including Grievant himself, referred to the paddle

sheet as a run assignment sheet. UX 4. Moreover, the Union’s Brief repeatedly uses

“assignment” in the sense of run assignment: Union Brief @ 2 (“Run Assignment Log

Sheet”, referring to the paddle sheet, UX 4); Union Brief @ 3 (“run work

assignments that do not begin and end at the same location”, referring to Article X, §

C); Union Brief @ 3 (“Run Assignment”, referring to Article XI, § J); Union Brief

@ 7 (“operators starting the last part of their assignment”, referring to Article IX, §

D); Union Brief @ 7 (“Operators who work an assignment”, referring to Article IX,

§ D); Union Brief @ 7 (“Run Assignment”, referring to Article XI, § F).

Based upon the foregoing considerations, the arbitrator concludes that the

phrase, “must report for their assignments at the scheduled time”, as used in Article

IX, refers to run assignments and means that operators must be physically present

at their buses by their Start Times, which, in Grievant’s case, means 1:31 pm. It is

undisputed that Grievant was late on March 20, 2012, so that he appropriately was

charged with a miss-out on the 20th. However, that conclusion does not answer the

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question of the appropriateness of charging Grievant with a second miss-out on

March 21, 2012, for not “reporting” before 10:00 am that morning.

Grievant claims that he was not told that he had been charged with a miss-

out on March 20, 2012, and the Union raises the just cause defense. Union Brief @

8, citing Article XXVI, § B. Although the Company dropped the miss-outs for

March 13 and 14, 2012, it is clear from the evidence and even from the Union’s

Brief @ 3-5 that Grievant was warned back then about arriving late at the Charlotte

Transportation Center.

A dispatcher explained to Grievant that if he insisted upon reporting in

person at the Davidson Garage and taking a bus to the Charlotte Transportation

Center, then he should come in earlier and catch “the Three (3) Plaza Road at 1:11

p.m.”, so as to arrive at the Transportation Center by his Start Time of 1:31. Union

Brief @ 3, citing UX 7. The Union claims that this warning amounted to

“intimidation” and that the dispatcher’s demand that Grievant come in earlier

without extra pay constituted a violation of the Fair Labor Standards Act. Union

Brief @ 4, 6.

Supplementing the evidence that Grievant had been personally warned about

arriving late is UX 6, Bus Operator Training Manual, which the Union itself

introduced. The Manual plainly states, “A 'miss-out' will be assessed to you if you

are late by only one second.” This warning is quoted on the very first page of text

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of the Union’s Brief @ 2.

The arbitrator might agree that a better practice would be for the Company

to immediately notify an operator of a miss-out, but the Union points to no

provision of the CBA that requires the Company to do so. To the contrary, the

CBA expressly allows the Company 14 days in which to act. Article XXVI, § B. In

any event, it is difficult to believe that the General Chairman of the Union does not

know the rules.

The Union’s insistence that Grievant must report in person to his assigned

garage even though his bus does not leave from there is implausible in light of the

Company’s policy of allowing similarly situated drivers to call in. The policy is

arguably implicit in Article IX, § C, which states that “Operators who call or report

in person after one hour will not be allowed to work.” Alternatively, authority for it

can be found in the management rights provision of the CBA, which provides in

pertinent part:

Employees of the Company, members of the Union Agree, and the Union agrees, that said members and employees … will observe and conform to the Rules and Regulations of the Company … .

[T]he Company expressly reserves to itself … the establishment of reasonable rules, instructions and regulations necessary for safe, proper and sound conduct of its business … .

Article II, § A.

Evidence that 20 out of 33 operators assigned to the Davidson Garage call in

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stands uncontradicted. The fact that split run operators may call in under Article X,

§ D does not mean that others may not do so as well. Union Brief @ 7. See Article

IX, § A (“may report in by telephone or in person”); Article IX, § C (“call or report

in person”). There is a call-in policy in effect, and Grievant failed to avail himself

of it.

The Union’s reliance on UX 2, a notice dated October 10, 2011, about

anticipated completion of some construction at the Davidson Garage, is badly

misplaced, as it is little more than instructions about where to park once the

construction is completed. Union Brief @ 2, 7, 8. Regardless of whether there once

may have been a requirement like the Union claims, it long has been waived, if not

changed. Elkouri & Elkouri, How Arbitration Works (6th ed), @ 560-566. Since

there presently is no such requirement, the Company has not violated the Fair

Labor Standards Act, a belated charge that was not part of the grievance. Union

Brief @ 6. The Company had just cause to assess a second miss-out against

Grievant on March 21, 2012.

Conclusion

In International Association of Firefighters Local 747 and City of St.

Petersburg, 09-1 ARB ¶ 4525, 109 LRP 15362 [2009 WL 8160737] (Arb 2009),

the City accused the IAFF of attempting to gain through arbitration what it had

failed to obtain at the bargaining table. Specifically, the IAFF wanted the City to

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do away with mandatory annual physicals. The grievant refused to take a physical

because of the terms of release forms he was required to sign. At the second step

hearing, the hearing officer accused the Union of seeking to obtain through

arbitration what it had failed to achieve through collective bargaining. In that

complicated case, the arbitrator sustained the grievance because the terms of the

release forms violated the grievant’s rights under the Florida Constitution.

However, the arbitrator emphatically upheld the City’s right to require

annual physicals and releases that did not impinge upon constitutional rights:

Nothing in this opinion should be construed as forbidding the City from requiring firefighters to take physical exams. The point is worth emphasizing, because the fire chief testified that, at the consultation held August 22, 2008, the Union proposed eliminating physicals. In the hearing officer’s Response (JX 6 @ 3), he went so far as to write, “Lt. Martin’s actions suggest that he attempted to achieve through the grievance process what he could not achieve through the negotiation process.” The City continues this theme in its brief @ 6, 9. Emphatically, the City retains the right to require firefighters to take physical examinations, as it always has done.

09-1 ARB ¶ 4525, 109 LRP 15362 [2009 WL 8160737], @ part VII, “The City’s

Right To Require Physicals”.

In the instant case, the arbitrator respectfully agrees with the Company, that

the Union appears to be seeking through arbitration what it failed to obtain through

negotiation. This is grievance arbitration, not interest arbitration. Therefore, the

arbitrator will remain consistent with the decision in IAFF and St. Petersburg.

Award

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For all the foregoing reasons, the grievance is DENIED.

Dated October 5, 2012 ________________________________ E. Frank Cornelius, PhD, JD, Arbitrator

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