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Cell phone use by public transit drivers more prevalent than you may think

July 21st, 2015  |  David Stephanides

The recent Amtrak accident in Philadelphia raised concerns in the minds of many that train, bus, or plane operators should not be using their mobile devices while operating their equipment. The safety of the riding public can’t be jeopardized by the impulse to text or talk. Of late, arbitrators have maintained a hard line when it comes to the practice. Below are several recent examples drawn from actual arbitration awards.

Cell phone use while operating a streetcar justified termination

A streetcar operator filed a grievance contesting her termination for using her cell phone to call and text while operating the streetcar. The arbitrator denied the grievance. Louisiana law imposes burdens on transit operators that are stricter than the burdens placed on ordinary drivers (extraordinary care rather than ordinary care). Video of the employee using her phone and texting while operating the streetcar clearly demonstrated that she violated these standards. Her neglect of duty exposed her employer, other vehicles, streetcar passengers, and pedestrians to potential harm. As a result, the employer had just cause to terminate her. Amalgamated Transit Union, Division 1560 and Veolia Transportation. Charles J. Crider, Arbitrator.

Cell phone use by bus driver justified termination

A bus driver filed a grievance contesting her termination for violating the employer’s ban on cell phone use while operating her bus. The arbitrator denied the grievance. The evidence clearly showed that the driver used her cell phone while operating the bus. The fact that she was responding to a personal family matter was unfortunate but it could not excuse her conduct given the potentially serious consequences to people and property. The arbitrator also denied the union’s request to dismiss the grievance on the ground that the employer failed to respond timely to a lower step grievance because the timeliness matter was not raised until the arbitration hearing and that the late response ultimately caused no delay in processing the case to arbitration. Amalgamated Transit Union Local 1764 and Veolia Transportation, Inc. George A. Connolly, Arbitrator.

Train operator’s cell phone use justified termination

An employee filed a grievance contesting her termination for using a cell phone while operating a train. The arbitrator denied the grievance. The employee essentially admitted using her cell phone while operating the train, which was a violation of the employer’s Distraction Avoidance Policy (DAP). The arbitrator also rejected the employee’s argument that the DAP was invalid—on the ground that it was never negotiated with the union—because it had previously been found valid by a different arbitrator. As a result, the employer had just cause to terminate the employee for violating the DAP. Metropolitan Atlanta Rapid Transit Authority and Amalgamated Transit Union, Local 732. Jerry A. Fullmer, Arbitrator.

Termination upheld for talking on cell phone while driving

A bus driver filed a grievance after being terminated for using a cell phone while driving the bus. The arbitrator upheld the termination and denied the grievance. Even though the bus driver was talking to the dispatcher, talking on a cell phone while driving was a firing offense under company rules. The driver could have taken various actions, such as pulling off to the side of the road before talking on the cell phone, but she did not. Veolia Transportation, Inc. and ATU Local 819. Joseph Licata, Arbitrator.

Ten-word call violated the zero tolerance cell phone policy

A bus driver filed a grievance after being terminated for violating the employer’s cell phone use policy by answering his cell phone while driving and saying “I can’t talk right now; I will call you later.” The arbitrator denied the grievance and upheld the termination. The employer and the union had agreed to a zero tolerance policy that permitted termination on a first offense. The fact that the conversation was brief was irrelevant. If the employee could not resist answering the phone, he should have turned it off. Even though the bus driver’s phone records showed no call on that date, the arbitrator chose to believe the testimony of the employer’s spotter who witnessed the call while riding on the bus. Veolia Transportation and Teamsters, Local 683. David B. Hart, Arbitrator.

However, termination too severe for first violation of cell phone policy

A bus driver filed a grievance contesting his termination for violating the employer’s zero tolerance policy against using a cell phone while operating a bus. The arbitrator sustained the grievance and ordered that the termination be converted to an approximately 11-month suspension without pay. The arbitrator determined that the employee did violate the policy by putting his phone away when it rang without engaging in any conversation. Termination, however, was excessive given that no passengers were aboard, no pedestrians were in sight, and this was the first case under the new zero tolerance policy. Also, the policy was ambiguous about whether termination was required on a first offense. Under these facts, it was too harsh a penalty. Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268. Jerry A. Fullmer, Arbitrator.

…And, cell phone use justified suspension but not termination

A bus driver filed a grievance contesting his termination for using a cell phone while operating a bus, in violation of the company’s zero tolerance policy against cell phone use. The arbitrator granted the grievance to the extent that the termination was converted into an unpaid, 7-month suspension. A zero tolerance policy cannot cancel out an employer’s obligation to terminate for just cause. Circumstances matter. In this case, an 18-year employee with a clean record clearly violated the rule, but he did not steal, commit violence, use drugs or engage in gross insubordination. He deserved to be punished but not to be terminated. He was now on notice, however, that any future violation would result in termination. Amalgamated Transit Union and Central Florida Regional Transportation Authority (LYNX). Stanley Kravit, Arbitrator.

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