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ATU Local 725 and Birmingham Transit Authority 1-30-97
ATU Local 725 and Birmingham Transit Authority 1-30-97
and
BIRMINGHAM-JEFFERSON COUNTY
TRANSIT AUTHORITY,
Company.
________________________________________/
Birmingham, Alabama, over the weekend of February 2-5, 1996. The applicable
collective bargaining agreement ("CBA") is the one for the period April 1, 1993
March 31, 1995, which was extended by the parties and was in effect at the time of
the events at issue. We turn first to the relevant provisions of the CBA, which were
The provisions from Article 39, entitled "Overtime", are set forth in the order
C. Operators desiring to do overtime work must sign the tripper board before
2:30 P.M. to be eligible for work the following day, including time due off.
A. Operators scheduled to work will have preference to operators on their off
day, providing such operators sign the tripper board as provided for.
B. Overtime work will be assigned according to seniority of operators working
on that day.
SECTION 7. When employees work on their first off day, they will follow
employees regularly scheduled to work on that day in order of seniority. Employees
working on their second off day will follow employees working on their first off day
in order of seniority.
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SECTION 3. In the event of any unusual traffic requirements beyond the
control of the AUTHORITY where a sufficient number of operators have not signed
the overtime board to perform the overtime work, the AUTHORITY may require
extra operators to work on one of their off days.
The parties agree that, for purposes of this arbitration, "tripper board" and
"overtime board" (see CX 1) are synonymous. They further stipulate that they have
Main Issue
that the Company must assign all overtime on the basis of seniority. In support of its
position, the Union relies upon Article 39, Section 8.B (see JXs 2, 4, 6). The
Company counters that, once the overtime board is exhausted, management may use
its discretion in assigning overtime. The Company relies upon Article 39, Section 8.C
(see JX 3). Both the language of the contract (when read as a whole) and practical
Limitations may be implied into an agreement, if the context requires. Elkouri &
Elkouri, How Arbitration Works (4th ed, 1985) at 352-354; 1985-89 Cum Supp
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(1991) at 90-91.
Section 8.C applies to all of Section 8. The former provides that any operator
on the day he desires to work overtime or whether he otherwise is due to be off that
day, must sign the overtime board in order to be eligible to work overtime. Section
8.A further provides that, among the operators who sign up to work overtime on a
given day, those otherwise scheduled to work on the given day have preference over
understood in context. Properly interpreted, it means that, among the operators who
sign up for overtime and who otherwise are scheduled to work, overtime is to be
assigned according to seniority to those who actually do show up for work. Thus, for
example, an operator who signs up for overtime and is otherwise scheduled to work,
but who calls in sick, will not be assigned any overtime. Finally, Section 7 establishes
priorities among those operators who sign up for overtime but who otherwise are off
duty.
problems arise. For example, if Section 8.B is not restricted to operators who sign the
overtime board, then Sections 8.A and C are rendered superfluous. If Section 8.B is
not further restricted to include only operators who otherwise are scheduled to work,
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then it contradicts Section 8.A, which gives them priority over those otherwise
operators who otherwise are scheduled to work and who sign up for overtime in
addition.
The only provision of the CBA which directly addresses the issues of
("may") and not mandatory. It merely states that, if traffic conditions warrant and
insufficient drivers have signed up for overtime, then the Company may require extra
drivers to work on what otherwise would be off days, in order to fill overtime
assignments.
the Union can point to no provision of the CBA which the Company violated,
management was free to use discretion in responding to the weather emergency. How
An ice storm was predicted for Friday, February 2, 1996. Operator Johnnie
Witherspoon, Jr., the grievant, was driving bus route #3802 that day, on a shift which
ran from 6:25 a.m. until 1:48 p.m. It is undisputed that grievant had not signed the
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Weather conditions deteriorated throughout Friday morning, to the point that
drivers were radioed to return to the garage as soon as they had dropped off all
passengers. Grievant returned between 10:50 and 10:55 a.m., and, with 35-40 other
drivers, awaited further instructions. About 11:15 a.m., the drivers were told that the
bus system was closing and that they could go home. Grievant went home.
Shortly after noon, an official from the Mayor's Office called the Company
and informed management that the Mayor had declared a weather emergency. In
event of such an emergency, the Company, together with the Alabama National
Guard and the Birmingham Fire Department, have the responsibility for transporting
persons in need of critical care, such as kidney dialysis. Road conditions were so bad
that buses could not be used, so the Company resorted to four-wheel-drive vans and
In an effort to obtain drivers for the emergency, the overtime board quickly
was exhausted. After that, the few drivers who had not yet gone home were asked to
stay and help out. Drivers known to be willing to work overtime were called at home;
grievant was not among them. Two drivers called from home and volunteered to help
out. Another driver who had been called Friday afternoon came in on Saturday,
February 3, 1996. Two drivers who had signed up to work overtime for Monday,
February 5, 1996, came in that day. Grievant had not signed up to work overtime for
Monday. Those drivers who worked were on duty continuously throughout the
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emergency.
Grievant was due back at work Monday morning. He called in about 4:00 a.m.
and was told that the Company was still closed. He was not informed that some
drivers were working on an overtime basis during the emergency. Grievant returned
to work Tuesday morning, February 6, 1996, and learned during the course of the day
that junior drivers had earned a goodly amount of overtime pay during the
procedures. Because he had not signed up for overtime on Friday, the Company was
under no obligation to attempt to contact him when management sought drivers from
the overtime board. After the board was exhausted, management could have, under
Section 3, turned to extra operators due to be off Friday, but was under no obligation
to do so. On Friday before grievant went home, he easily could have signed up to
That grievant was not among those drivers known to be willing to work
overtime is of his own doing. Indeed, at the hearing, grievant was vague about his
history of overtime. He even testified that, if he had been called at home and had
been offered the opportunity to work overtime during the ice storm, he would have
had to make a judgment as to whether or not to accept the offer. He did not present
the picture of a bus driver anxious to assist his City in its hour of need.
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At the hearing, the Company presented testimony that it followed its past
practice regarding overtime assignments. The Company's practice comports with the
language of the contract and with sound business principles. It would be wasteful and
inefficient for the Company to go down the seniority list person-by-person each and
every time the overtime board is exhausted, calling even those drivers with well
known antipathies toward overtime. It is far more efficient to approach directly those
Observation
If the Union is concerned about the result in this case, a similar result can be
avoided in the future simply by ensuring that enough operators sign the overtime
Decision