5 Employees Benefit: TWU Wins $200G Through Arbitration

5 Employees Benefit

TWU Wins $200G Through Arbitration

The Transport Workers' Union Local 100 won a spate of court hearings and stipulation cases against New York City Transit last week, getting more than $200,000 in back pay and lost overtime for five wronged employees.

ARTHUR SCHWARTZ: Good week in arbitration. Some of the cases were previously heard by arbitrators who ruled in favor of Local 100 but had to be argued again after NYC Transit either appealed or didn't comply with the original rulings.

Postal Job No Obstacle

Debra Orr's case, which centered on her right to work a second job, was heard by an arbitrator in 2002, 2004 and then again in December 2005.

Problems arose for Ms. Orr when she filed a notice of dual employment in 2002 as part of the Policy Instructions for working as a Conductor for NYC Transit. The agency's policies state that workers must have at least 16 hours free prior to working an eight-hour shift for NYC Transit.

Ms. Orr maintained that her job with the Postal Service fit within that time frame, and submitted documentation supporting her claim. But her next job pick as a Conductor was denied by NYC Transit and she was assigned to platform duties, leading her into an arbitration case that she won.

The case went before a second arbiter in 2004 when Ms. Orr accused NYC Transit of non-compliance; the agency again promised to reinstate her to her Conductor position. NYC Transit then moved to vacate the previous rulings of arbiter Richard Adelman, arguing that he had exceeded his authority on an issue that could only be decided by a department head.

Noting that this was a position the agency "has never argued before after at least five previous arbitrations in this area," an arbiter at the third hearing dismissed NYC Transit's cross-motion and again ordered the company to reinstate Ms. Orr to her Conductor job and allow her to file her papers of dual employment.

Back Wages Due

Arthur Schwartz, legal counsel for Local 100, represented Ms. Orr in the case. He said the agency's petition was dismissed "with cost," meaning Ms. Orr is due back wages on the overtime she lost while assigned to platform duties instead of her Conductor position. The final amount has yet to be determined. Two other cases won last week by Mr. Schwartz involved drug tests and wrongful terminations.

Frank Woodruff became a cause clbre among transit workers when he was fired in 2001 after being unable to urinate for a drug test. Mr. Woodruff, a stock handler, had been off the job with an injury for longer than 21 days and, pursuant to NYC Transit's policy, had to submit to a drug test upon his return.

Having relieved himself just moments before, he was unable to produce enough urine for the sample and was suspended without pay. An arbitration decision in his favor brought him back to the job in 2003, but NYC Transit succeeded in getting that ruling vacated, and then fired him.

Mr. Woodruff won reinstatement via a court suit a month ago, but has not yet been rehired. Mr. Schwartz said his award of back pay and missed overtime should total more than $125,000.

Another well-known case involved Patrick Mahon, a Train Operator from The Bronx who showed up for a random drug test five minutes after the two-hour window established by NYC Transit had passed.

Clean Didn't Count

He explained that he'd had to travel from the North Bronx and was unaware of the two-hour limit. He was given the drug test and the results came back clean, but the agency charged him with a refusal to take the test, which is considered an automatic positive.

He was suspended without pay and ordered into a drug-and-alcohol program, which he attended while the union argued his case to an arbiter.

The arbiter said Mr. Mahon had a reasonable excuse for arriving late, and under Federal regulations, could go back to work once he'd finished the substance-abuse program. Mr. Schwartz wrote to the arbiter clarifying that the Federal regulations didn't stipulate that Mr. Mahon had to finish the program and the ruling was amended so he could return to work immediately.

Too Eager to Return?

During the month it took to get the ruling changed, Mr. Mahon attended the substance-abuse program without pay. Supervisors there said Mr. Mahon, who had been in a similar program a decade earlier, seemed suspiciously eager to return to work. NYC Transit put him in a clerical position, but argued that they had complied with the arbiter's ruling because they were paying Mr. Mahon his Operator wages.

The union brought the case before an arbiter again, who told NYC Transit it had not complied with earlier orders. The agency was told to return Mr. Mahon to his Operator position and pay him $10,000 in lost overtime earnings.

Two stipulation awards went to Station Cleaner Brian Jones and Conductor Joseph Middleton.

Mr. Middleton was hired in 2000 as a Conductor but six months later was told by the Department of Citywide Administrative Services that he wasn't qualified because of a prior arrest. He was fired by NYC Transit, but brought an appeal of DCAS's termination recommendation to the Civil Service Commission.

Treated As New Hire

In August 2002 he was reinstated, but NYC Transit started him as a new employee and paid him $14 per hour instead of the nearly $20 he would have been making had he not been fired. He filed a claim trying to get back pay for his two lost years - an outcome is pending - and also protested his lowered hourly wage.

An arbitrator heard from both parties this past December and he urged NYC Transit to settle the matter out of court. The agency agreed, and Mr. Middleton was awarded $35,000 for the three years he was underpaid.

The final case involved Mr. Jones, a Station Cleaner who got injured on the job and missed more than a year's work. Under Section 71 of Civil Service Law, an employee can be fired after a year of not working, and Mr. Jones was let go by NYC Transit. Nine months later, fully healed, he reapplied for his job.

NYC Transit gave him a physical that he passed and approved him for rehire. He was told he would be given the next available Station Cleaner opening.

Lies or Incompetence?

Although Mr. Jones phoned regularly to check in with NYC Transit managers, it took 2-1/2 years for him to get his job back. He filed a claim against the agency, and Mr. Schwartz represented him in the arbitration hearing.

"We found out that during the 2-1/2 years he was being told 'We're not hiring cleaners right now,' they had actually hired more than 100 cleaners," said Mr. Schwartz. "Nobody ever explained why they didn't call Mr. Jones - just incompetence, I think."

An arbitrator awarded Mr. Jones back pay from the date the first cleaner was hired after he reapplied for his job; his award should total about $45,000, Mr. Schwartz said.