IAEP Wins Shift-Bid Arbitration Against Twin City (New York)
April 4, 2008
IAEP attorney Rebecca Proakis won an arbitration against Twin City Ambulance of upstate New York on behalf of a Local 394 member who was wrongly denied her chosen shift in the shift-bidding process.
Twin City EMS professionals who serve the greater Tonawanda and Amherst, New York area are classified according to their experience and credentials: EMT-Basic, EMT-Intermediate, EMT-Critical Care, Paramedic and Dispatcher. Different communities in the district have different requirements for the minimum staffing level for each ambulance. Employees also require additional training and certification in order to drive an ambulance.
The schedule for all bargaining unit employees went up for re-bid in June 2007. The grievant, a full-time EMT-Basic who was also qualified to drive, was designated #12 on the bid order. The scheduling coordinator told her that she couldn’t bid on her desired shifts because she was “classified as a driver” and those shifts were designated for “non-driver” employees. The grievant bid on four other shifts, all of which were “driver” shifts, and was ultimately assigned a shift other than the ones of her choice. Meanwhile, another employee who was designated #4 on the bid order requested and received four shifts designated as “driver” shifts—even though she was not qualified as a driver when she made her bid.
IAEP Local 394 Vice President Timothy Licht, who is now the local's chief shop steward, filed a grievance on behalf of the first employee. A Twin City manager told Licht that the grievant could bid only on “driver” shifts, even though Licht knew there were no classifications of “driver” and “non-driver” in the collective bargaining agreement. At Step 2, the company denied the grievance on procedural grounds as well as the merits of the case. During this time, the grievant swapped shifts with another EMT in order to work her desired shifts.
At arbitration, Twin City argued that the grievant’s shift-swap made the matter moot and that the matter was not arbitrable. IAEP Attorney Proakis argued that the company’s action did, in fact, violate the shift-bidding procedure described in the CBA and that the grievance did describe the contract language in question. She also cross-examined Twin City’s own scheduling coordinator who testified that shift-swapping cannot alter an employee’s permanent schedule. The arbitrator concluded that a cooperative colleague willing to swap shifts may help in the short term, but it does not resolve the ultimate grievance. Lastly, Attorney Proakis argued that the matter can not be moot, by law, when there remains a possibility that the challenged conduct will recur in substantially the same form. Consequently, the arbitrator ruled that the matter was arbitrable.
The October 2007 re-bidding of the schedule didn’t make the grievance go away either, the arbitrator ruled, since the re-bid denied the grievant her desired shifts on exactly the same grounds as the bid process four months earlier.
Finally, the arbitrator ruled that Twin City bent its own rules by permitting a non-driver to bid on driver shifts before she was fully certified for them. That action was not only a clear violation of language in Article 24, Section 18 of the contract, but an ill-advised business move that opened the company up to liability.
Attorney Proakis argued that the grievant should not be penalized for having an additional qualification, namely the ability to drive, and that the grievant’s denial to bid on shifts which did not require driving was wrongful and contractually unsound. Job classification seniority, the arbitrator ruled, is a negotiated term allotting rights and benefits when shift bidding—and nowhere in the CBA is there any reference to classifications entitled “driver” and “non-driver.” As an aside, the arbitrator noted that only the grievant was denied the shifts she had bid in June 2007; all other employees’ bids were approved.
The arbitrator issued a steadfast ruling to Twin City that non-driver qualified employees cannot bid on shifts that require the employee to drive and inversely driver-qualified employees can not be restricted from shifts that do not require the employee to drive.
Most importantly, the arbitrator ruled that the employer was prohibited from reserving or holding any vacancies during the bid process for any employees and the grievant and all of her colleagues would be allowed to re-bid for shifts at the regularly scheduled bidding process later this year.
Attorney Proakis concluded that Twin City had manipulated the contract to enable management favoritism. “It really was one of those types of scenarios where if you gave management an inch, they would take a mile. So the matter really needed to emerge before an arbitrator in order to interpret the contract and make certain that the Employer abide by it. In the end, the IAEP prevailed on every procedural and substantive argument, and the case really made the employer take notice of us and what we can do for our members.”