Arbitration Decisions

Local 113 and Toronto Transit Commission (TTC)

ISSUE: Was just cause established in demoting a driver and prohibiting him from applying for further operating positions in the case of an elderly woman struck and fatally wounded by a streetcar?

SUMMARY: On June 19, 2006, the grievant was operating a Queens Westbound streetcar. At approximately noon, grievant stopped at the intersection of Lakeshore and 5th Street to allow passengers to enter and exit the car. At the time, the light was red. Once all passengers had exited or taken their seats, the light turned green and the grievant headed into the intersection. Suddenly, grievant heard screams from the sidewalk and immediately stopped the car. Upon exiting the vehicle, grievant saw an elderly woman trapped underneath the front of the streetcar asking for help. Paramedics and firefighters were called to extract the woman, who later died. Responding to the grievant’s call for emergency assistance, a Line Supervisor and a Mobile Supervisor from TTC reported to the scene and began an investigation. The pair of TTC officials took numerous photographs of the accident scene and the streetcar. None of the witnesses on hand were interviewed by TTC officials, as the officials felt their evidence “would be irrelevant” to the investigation. The TTC officials noted that the car was in full working order and that the crossover mirrors allowing the operator to see the surrounding area were in proper position. The TTC officials therefore concluded that the grievant was at fault for the accident, reasoning that the grievant had not checked his mirrors prior to entering the intersection as required.

The grievant was subsequently terminated from employment. A short time later the grievant was reinstated with the limitation that he be disqualified from operating duties within the TTC.

Testimony from the grievant indicated that he had in fact checked both crossover mirrors prior to entering the intersection, and that he “had no idea where the woman could have come from.” The grievant argued that the woman was of small stature and could have easily been in a blind spot not visible to the crossover mirrors. The employer argued that the crossover mirrors had no blind spots and were “100% effective” at displaying the surrounding environment to the operator.

HOLDING: Arbitrator R. Jack Roberts found there to be insufficient grounds for establishing just cause for the disciplinary actions taken by the employer. Roberts was given a first hand demonstration of the blind spots present in the streetcar crossover mirrors, and determined that there was a reasonable doubt as to whether or not the operator could have seen the elderly woman crossing into the intersection. The case presented by the employer was found to be “unpersuasive” and the operator was ordered fully reinstated without restriction.


Local 441 and Des Moines Metro Transit Authority

ISSUE: Did the employer violate the Collective Agreement by terminating an employee for insubordination and failure to adhere to safety regulations pertaining to faulty drop lights?

SUMMARY: The grievant reported a faulty drop light in the garage area to the PM Supervisor, and was directed to “tie it up, send it to the ceiling and write it on the [note] board.” The grievant testified that he tied the light up and sent it to the ceiling, but did not write it on the board.

It was argued by the employer that failure to write the light malfunction on the notation board constituted a direct violation of safety regulations. Additionally, the employer argued that by failing to follow the full order of the PM Supervisor that the grievant was guilty of insubordination, in accordance with the MTA Maintenance Department Employee handbook. The employer felt the insubordination established just cause for dismissal under the contract.

The grievant testified that the working policy of the garage was simply to tie the light and send it up to the ceiling, or to report it to a supervisor. Accordingly, if the there was a violation of safety procedures it was the fault of management for not making the policy clear to garage personnel. The grievant alleged that under the MTA Maintenance Department Employee handbook Section 26: Preventable Accidents, the punishment for a first time offense was limited to a simple written warning. Therefore, according to the grievant, the employer had not established just cause for dismissal.

HOLDING: On October 27, 2006, arbitrator Wayne Newkirk found that “MTA’s termination of grievant’s employment does not meet the standard of Just Cause” as required by the Collective Agreement. “[Grievant’s] election not to write it up was technically insubordination but not inconsistent with the working rule honored by mechanics.” The grievant’s employment was subsequently ordered restored.