FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 96-2113

AMALGAMATED TRANSIT UNION

LOCAL #725,
Union,

and

BIRMINGHAM-JEFFERSON COUNTY
TRANSIT AUTHORITY,
Company.
________________________________________/

OPINION OF THE ARBITRATOR

January 30, 1997

After a Hearing Held January 17, 1997

In Birmingham, Alabama

For the Union: For the Company:

George C. Longshore, Esq. Debra B. Walker, Esq.

Suite 708, Brown Marx Tower 1201 19th Street North
2000 First Avenue North Birmingham, AL, 35234
Birmingham, AL 35203
 Introduction

This dispute, between Local #725 of the Amalgamated Transit Union

("Union") and the Birmingham --Jefferson County Transit Authority ("Authority" or

"Company"), arose from a weather emergency declared by the Mayor of

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

introduced into evidence as Company Exhibit #2 ("CX 2", etc.).

Collective Bargaining Agreement

The provisions from Article 39, entitled "Overtime", are set forth in the order

most conducive to their understanding:

SECTION 8. The assigning of overtime work will be according to the

following provisions:

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.

2
 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

waived the three-person Board of Arbitration provisions of Article 12 of the CBA

and have submitted this matter in its entirety to a single arbitrator.

Main Issue

This matter is principally one of contract interpretation. The Union contends

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

business considerations favor the Company's position.

Standard rules of contract interpretation require that a contract be read as a

whole. No provision should be applied in isolation from other provisions. Each

provision should be given meaning, so that no provision is rendered superfluous.

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

3
(1991) at 90-91.

Section 8.C applies to all of Section 8. The former provides that any operator

desiring to work overtime, regardless of whether he otherwise is scheduled to work

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

those due to be off.

Section 8.B is not a provision of general applicability but rather must be

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.

If the applicability of Section 8.B is not limited accordingly, then interpretive

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,

4
then it contradicts Section 8.A, which gives them priority over those otherwise

scheduled to be off. Of necessity, the applicability of Section 8.B is limited to

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

exhaustion of the overtime board is Section 3. However, that Section is precatory

("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.

Article 3, Section 1 is the usual reservation of management rights clause. Since

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

Arbitration Works at 460-461.

The Ice Storm

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

overtime board to work overtime on Friday.

5
 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

to private automobiles of supervisory personnel still on the premises.

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

6
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

emergency. The grievance followed.

On the undisputed facts, grievant simply failed to follow established

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

work overtime for Monday, but he did not do so.

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.

7
 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

most likely to be willing to work.

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

board whenever a state of emergency is declared.

Decision

For all the foregoing reasons, the grievance is DENIED.

Dated January 30, 1997 _________________________

E. Frank Cornelius, Arbitrator