The New York City Transit Authority changed the assignment of Maintenance Supervisors at the Grand Avenue Central Maintenance Facility so that Maintenance Supervisors would have to supervise multiple groups of subordinate employees in the event a Maintenance Supervisor was absent. Historically, coverage for such absences would be made by assigning Maintenance Supervisors who had specifically selected during the annual pick of job assignments the job of providing absence relief. If such a Maintenance Supervisor was unavailable, Maintenance Supervisors from earlier and later tours of duty would split up the hours covered by the absence generating overtime for both. If coverage was still unavailable, a Maintenance Supervisor would be assigned in reverse seniority order. Starting April, 2024, however, the Authority began a process of requiring Maintenance Supervisors on the same tour as the absent Maintenance Supervisor to cover multiple groups of subordinates eliminating the overtime and eliminating selection by seniority.
The Maintenance Supervisors union, the Subway-Surface Supervisors Association, grieved this change as a violation of a contractually mandated past practice under the party’s collective bargaining agreement. In a December 23, 2024 award, arbitrator Howard Edelman agreed.
Arbitrator Edelman dismissed the Authority’s defense that no such past practice existed noting that the union’s witnesses, all of whom were Maintenance Supervisors, were more credible in their claims that the Authority’s Deputy Vice President who denied the existence of such a practice. The arbitrator ruled this way because the union demonstrated that the Deputy Vice President had no firsthand knowledge of the practices at the Central Maintenance Facility. The arbitrator also noted that the change coincided with Authority memoranda which announced a moratorium on unbudgeted overtime. The memoranda, the arbitrator stated, “lend substantial credence to the Union’s description of a changed post-April, 2024 world at Grand Avenue…”
The arbitrator then found that the existence of pick rights in the collective bargaining agreement meant that filling these positions by seniority was required and failing to do so violated the agreement. The arbitrator rejected the Authority’s reliance on the agreement’s “zipper” clause in light of contract language expressly permitting the arbitrator to consider past practices. The arbitrator also noted that prior arbitral decisions under this collective bargaining agreement stated, “[P]ractices which are fundamental to the rights of the parties become embedded in the labor contract even when not spelled out or addressed therein.” The arbitrator finally held that the existence of special circumstances where the proven past practice was deviated from did not serve as a defense to the union’s claim. The arbitrator retained jurisdiction to resolve any disputes as to whether special circumstances exist on any given occasion.
The arbitrator’s award is a significant reaffirmation of the union’s hard-won seniority and overtime rights. It is elemental to collective bargaining that changes in terms and conditions of employment must be won at the bargaining table and not through unilateral changes by an employer. Arbitrator Edelman’s decision upholds and strengthens this proposition for the effected members of our client, the Subway-Surface Supervisors Association.
IDC&W Partner Howard Wien served as counsel for the union in this arbitration.