Update: A comment was added to the fourth from last paragraph from CTA spokeswoman Tammy Chase about the case.
The Chicago Transit Authority will have to shell out $7.3 million in damages and pension benefits for overworking part-time bus drivers over a 20-month period, a state appeals panel ruled Tuesday.
The 1st District Appellate Court upheld an arbitration award which held the CTA liable for making part-time bus drivers work more than 32 hours a week, from May 2010 to January 2012. This violated the CTA’s collective bargaining agreement with Amalgamated Transit Union, Local 241, the panel held.
The CTA will have to pay out damages for 236,430.9 hours worked during the 20-month period to the part-time bus drivers it underutilized and to full-time bus drivers. It will also have to make up for the lost pension benefits those full-time drivers are owed.
“[The arbitrator] did not willfully disregard the terms of the CBA,” Justice P. Scott Neville Jr. wrote in the 12-page Rule 23 order. “He fashioned a remedy designed to compensate union members for work opportunities they lost because the CTA violated the CBA. The award drew its essence from the CBA.”
For years, there have been full-time and part-time drivers manning CTA buses and covered by the collective bargaining agreement. Under the agreement with Local 241, the CTA could only employ a certain number of part-time drivers, who could only work a certain number of hours.
At the time, up to 25 percent of the CTA’s workforce could be part-time, and they could only work up to 32 hours a week unless there was an emergency.
But for years, the CTA — with the union’s blessing — scheduled some part-time drivers to work more than the permitted number of hours under the contract.
That detente changed in February 2010, when the CTA laid off 903 union members, or 14 percent of the employees the union represented with the CTA. Following those layoffs, Local 241 warned the CTA it would enforce the contract provision of capping part-time drivers at 32 hours a week.
By January 2012, however, the CTA would hire back all of the drivers they had previously laid off.
But the CTA kept scheduling part-timers for more than 32 hours a week, leading the union to file a grievance accusing the agency of violating Article 3.6(L) of the labor agreement. That article codifies the 32-hour-per-week restriction on part-time drivers. The CTA argued at all levels of this case that the lack of staffing they had at the time was an emergency that allowed them to ignore the hours-worked cap.
The grievance eventually came before arbitrator Raymond McAlpin. After holding three evidentiary hearings in 2012, McAlpin in March 2014 held that the CTA breached the agreement and was liable for damages.
He noted that while a “past practice” of assigning part-time drivers more than 32 hours existed, “but past practice governs only when the language is not clear and past infractions do not justify current infractions without the union’s agreement or at least acquiescence.”
The panel’s opinion does not mention how much in damages McAlpin ordered the CTA to pay, but Local 241’s website said it won a $7.3 million arbitration award. Ronald M. Willis, a partner at Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich who represented the union, confirmed that the award is estimated to be worth around $7.3 million.
The CTA sought to vacate the arbitration award in Cook County Circuit Court, but Circuit Judge Thomas R. Allen sided with the union in August 2015.
The panel noted that the standard for overturning an arbitrator’s decision is a high one. A arbitrator cannot “dispense his own brand of industrial justice,” Neville wrote, citing case law.
But an arbitrator’s decision will stand if he or she drew on the “essence” of the collective bargaining agreement. In other words, Neville wrote, the only way the CTA could prevail is if it proved McAlpin had willfully disregarded its contract with Local 241.
The CTA never made that argument. Instead, the agency argued that McAlpin erred, which is not good enough to vacate his award, the panel found.
The panel rejected the CTA’s argument that McAlpin failed to recognize that the bargaining agreement’s 32-hour-per-week cap was essentially nullified by the past practice of allowing part-time drivers to work more than they should have.
But McAlpin made an acceptable caveat to this past practice, the panel found.
“In McAlpin’s view, the past practice included the union and the CTA working cooperatively to resolve staffing problems, and the CTA deviated from past practice by imposing by its sole fiat new terms that allow for no limitation whatsoever on its use of [part-time bus drivers],” Neville wrote. “McAlpin’s interpretation of the past practice clause qualifies as an interpretation of the CBA, and not as a willful disregard of the CBA.”
The CTA also took issue with the fact that McAlpin never addressed the agency’s argument that it was in the midst of a staffing emergency, and thus, it had to overschedule part-time bus drivers. And it argued against the damages McAlpin awarded the union.
But the panel indicated this was acceptable, with Neville writing that McAlpin “responded with tactful silence.” Additionally, the panel cited case law that upheld an arbitrator’s flexibility in determining the damages if a collective bargaining agreement is breached.
As a result, Neville wrote there was no “significant ground” for disturbing McAlpin’s award.
The CTA was represented by Deputy General Counsel Stephen L. Wood and Chief Attorney Rachel Lynn Kaplan.
Tammy Chase, a spokeswoman with the CTA, said in an emailed statement: “For more than 25 years up until 2010, the CTA and Local #241 participated in a common sense, mutually accepted practice of scheduling part-time bus operators more than 32 hours a week to ensure that CTA was able to provide robust and reliable bus service to CTA customers – hours for which operators were paid. CTA is disappointed in the recent ruling and will continue to work with Local 241 to provide reliable, safe and convenient bus service to customers.”
Chase added they have not determined whether they will ask the panel to reconsider its motion, or if they will file an appeal with the state Supreme Court.
Willis expressed satisfaction with the panel’s ruling.
Justices Michael B. Hyman and Daniel J. Pierce concurred with the order.
The case is Chicago Transit Authority v. Amalgamated Transit Union Local 241, 2016 IL App (1st) 152571-U.