FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 92-08849

AMALGAMATED TRANSIT UNION,

LOCAL NO. 737,
Union,

and

KNOXVILLE TRANSIT DIVISION OF

ATC MANAGEMENT CORPORATION,
Company.
____________________________________/

OPINION OF THE ARBITRATOR

July 21, 1992

After a Hearing Held July 17, 1992

At K-TRANS, 1135 Magnolia Avenue, Knoxville, Tennessee

For the Union: For the Employer:

Patrick T. Phillips, Esq. John M. Lawhorn, Esq.

709 Market Street, Suite 1 Post Office Box 39
Knoxville, Tennessee 37902 Knoxville, Tennessee 37901
 Background

Grievant, [SF], is an operator (i.e., a bus driver) for the Knoxville

Division of ATC Management Corporation (the "Company" or "K-TRANS")

and a member of Amalgamated Transit Union Local No. 1164 (the "Union").

On or about Thursday, August 29, 1991, Grievant learned that he would be

required to work on the upcoming Labor Day holiday (CBA § 18, ¶ 1),

September 2, 1991, news which he did not receive happily.

Grievant expressed his displeasure to Delbert Lambert, the supervisor

who had drawn up the Labor Day work assignments. Mr. Lambert spent

approximately 45 minutes explaining the selection process to Grievant: First,

job assignments are offered on a seniority basis; to the extent not enough people

volunteer, openings are filled on the basis of reverse seniority. Mr. Lambert

explained also how employees with less seniority than Grievant might not be

required to work Labor Day; for example, if Monday were their regular day off.

After hearing Mr. Lambert's explanation, Grievant elected to be placed on the

extra board (CBA § 15) for Labor Day, which he felt afforded him the best

chance of finishing work early. Grievant worked Friday, August 30, 1991, his

last scheduled work day preceding the Labor Day holiday.

At approximately 5:00 Labor Day morning, Grievant called in to get his

assignment for the day. He spoke with Maynard Tindell, the morning
dispatcher, who informed Grievant that he had been assigned a 9:55 a.m. run. A

few hours later, Grievant called back and told Mr. Tindell, "Just mark me off

sick today" (CBA § 12, ¶ 18). Grievant did not report for work on Labor Day,

and did not call in before 4:00 p.m. as required (CBA § 12, ¶ 19).

Grievant reported to work the following day, September 3, 1991, for his

regular run, only to learn that it had been reassigned because he had not called in

before 4:00 p.m. the previous day. Grievant then went to his doctor, who made

the following entry on Grievant's medical chart (EX 4):

9/3/91 [SF] complains of nausea, vomiting and diarrhea yesterday. He is

a little bit better this morning after taking Imodium. HEENT, chest, heart,
abdomen and extremities are normal. He will return to work today and
return p.r.n.

Grievant also obtained a doctor's certificate (EX 5), which stated:

9/3/91 He may return to work 9/3-4, by D.B. He had a stomach virus and
was out 9/2.

The doctor's signature is characteristically illegible. A copy of Exhibit 5, the

doctor's certificate, is attached to this opinion.

On September 12, 1991, Grievant picked up his paycheck and learned

that he had not received either holiday pay or sick pay for September 2nd or 3rd,

1991. He filed a grievance on September 19, 1991 (EX 2), which was denied on

September 25, 1991 (EX 3). This arbitration ensued, pursuant to § 5 of the

Collective Bargaining Agreement for the term July 1, 1991 through June 30,
1994 ("CBA" or EX 1).

The Collective Bargaining Agreement

Grievant insists (EX 2) that he complied with CBA § 12, ¶ 18, which

states:

Emergencies: When personal sickness, serious illness in immediate

family or similar unforeseen emergency of serious consequences occur to
any operator after the marking up and posting of the working list for the
following day, the operator may be absent from work without pay the day
following the posting of such list, provided he notifies the Dispatcher not
less than forty (40) minutes before his (operator's) run is due to start. This
rule shall also apply to an operator after beginning his run, except as to
giving the forty (40) minutes notice. Any person who must be off for
verified medical appointments shall be allowed to return to his or her run
following such appointments, provided the dispatcher receives forty-eight
(48) hours written notice of such appointments.

Grievant claims that the Company violated CBA § 24, ¶ 2,1 which states:

Sick Leave shall be effective on the second (2nd) scheduled work day,
first (1st) day if confined to a hospital, or scheduled for approved
outpatient surgery in lieu of hospitalization, and shall be paid after the
first (8) hours of lost time. A doctor's certificate must be furnished as
proof of illness. Employees must see a doctor within three (3) days of
their illness.

In addition, Grievant claims that the Company violated CBA § 18, ¶ 8,

which provides in pertinent part:

Holiday pay will not be paid to employees that:

(a) Do not work their last scheduled work day preceding the observed

1
In Exhibit 2, the Grievance Report, Grievant refers to "Sec. 25 Par 2", but there is no such provision in the CBA;
the Company makes the same mistake in its response (EX 3). I assume that the correct reference is § 24, ¶ 2,
which is set forth in the text of the opinion. See Lambert testimony.
 holiday AND their first scheduled work day following the observed
holiday and the holiday, if scheduled to work, unless they have been
excused for illness or injury.

(e) In the event an employee is at work on his/her scheduled work day

preceding or following a holiday and must be relieved for illness or injury
or similar emergency of serious consequences he/she will be paid holiday
pay. Such emergency shall be documented.

Discussion

Grievant seeks holiday pay (CBA § 18) for 9/2/91 and sick pay (CBA §

24) for 9/3/91. It is undisputed that Grievant worked 8/30/91, the last scheduled

work day preceding the Labor Day holiday; that he was scheduled to work

Labor Day, 9/2/91; that he called in sick 9/2/91 and did not work; that he failed

to call in by 4:00 p.m. Labor Day, in accordance with CBA § 12, ¶ 19; and that

he did not work 9/3/91, because his run had been assigned to another operator.

Under the plain language of CBA § 18, ¶ 8(a), Grievant is entitled to holiday

pay only if he was sick on both 9/2/91, the holiday itself, and 9/3/91, the first

scheduled work day following the holiday.

There is insufficient evidence that Grievant was sick and unable to work

on 9/3/91. The doctor's certificate (EX 5) indicates a stomach virus only on

9/2/91. Grievant's medical chart (EX 4) confirms the fact that his illness

occurred on 9/2/91. Regardless of when the chart actually may have been

prepared, it is clear that it refers to the state of his health on 9/3/91, the date on

which he was examined by the doctor ("this morning", "today"). The thrust of
Grievant's complaint to the doctor was that Grievant had been ill on 9/2/91

("yesterday").

The doctor's observations were consistent with those of Company

supervisors and, indeed, with Grievant's own assessment of his health on 9/3/91.

He showed up for work, fully intending to work. He appeared ready to work to

Company supervisors. He seemed surprised and annoyed that they did not

expect him to be there. He made no mention of any plans to see a doctor. Seeing

one seems to have been something of an afterthought. All credible evidence

indicates that Grievant was ready, willing, and able to work on 9/3/91. He was

not permitted to do so only because he had not called in, as required by the

CBA.

Grievant concedes error in not calling in by 4:00 p.m., 9/2/91. As a result,

the Company was justified in not permitting him to work on 9/3/91. This being

the case, it is unnecessary to decide whether Grievant was in fact ill on Labor

Day itself. Regardless of the state of his health on Labor Day, he is not entitled

to sick pay, because entitlement would not begin until the second day of illness

(CBA § 24, ¶ 2). Even if Grievant were sick Labor Day, he nevertheless

violated CBA § 12, ¶ 19 by failing to call in and so properly was not permitted

to work 9/3/91 and equally properly was denied holiday pay, pursuant to CBA §

18, ¶ 8(a). If Grievant was not ill on Labor Day, nothing further need be said.
 Award

At the hearing, the parties stipulated that this is not a disciplinary action

by the Company but rather a denial of benefits under the Collective Bargaining

Agreement (cf. CBA, § 24, ¶ 6). In this situation, the Union concedes having the

burden of proof. I conclude that the Union has failed to carry its burden.

Whether that burden is characterized as being one of demonstrating that

the Company's action was unreasonable on the basis of the evidence before it,2

or as one of bearing the risk of non-persuasion in a full-blown hearing,3 the

result is the same. There is simply insufficient evidence that Grievant was so ill

as to be unable to work on Tuesday, September 3, 1991. For this and all the

foregoing reasons, the grievance is DENIED.

Dated: July 21, 1992 ________________________

E. Frank Cornelius, Arbitrator

2
"[I]n George Kraft Co., 71 LA 222 (Spritzer, 1978), the arbitrator ruled that in determining whether an
employee violated a contract rule by refusing to perform required overtime work, the employer does not bear the
burden of proving just cause after it has demonstrated that a legitimate company rule containing a discharge
penalty was violated, subject, however, to the union's right to demonstrate that the rules were improperly applied
or, given special circumstances, that the penalty was unreasonable." Hill & Sinicropi, Evidence in Arbitration
(BNA 1987), at 43.
3
Hill & Sinicropi, Evidence in Arbitration (BNA 1987), at 39-40.