FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 07-60214

TEAMSTERS STATE, COUNTY AND

MUNICIPAL WORKERS, LOCAL 214,
Union,

and

MUSKEGON AREA TRANSIT SYSTEM,

Employer.
____________________________________/

OPINION OF THE ARBITRATOR

February 29, 2008

After a Hearing Held January 25, 2008

At the Muskegon County Governmental Complex in Muskegon, Michigan

For the Union: For the Employer:

Michael L. Fayette Theodore N. Williams, Jr.

Pinsky, Smith, Fayette & Kennedy Williams, Hughes & Cook, PLLC
146 Monroe Center, NW, Suite 1515 PO Box 599
Grand Rapids, MI 49503-2824 Muskegon, MI 49443-0599
 I. Background

Grievant was employed as a full-time bus driver by the Muskegon Area

Transit System (“MATS”), which is operated by the County of Muskegon,

Michigan (“County” or “Employer”). The County’s governing body is its Board

of Commissioners. Full-time MATS bus drivers are represented by Teamsters

State, County and Municipal Workers, Local 214, which is affiliated with the

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America (“Union”).

On Saturday, March 17, 2007, St. Patrick’s Day, an off-day for Grievant,

he set out to find his brother, who he had heard was seriously ill. Grievant went

to a bar where his brother had worked. Although Grievant did not find his

brother there, he had two drinks. Afterward he found his brother at a nearby bar

and had a couple more drinks. On the way home, Grievant was stopped for

speeding and was given a breathalyzer test, which he failed.

On June 26, 2007, Grievant pleaded guilty to the offense of operating a

motor vehicle while impaired. An Order of Action dated July 2, 2007 and issued

to Grievant by the Michigan Department of State reads in pertinent part:

A CERTIFIED ABSTRACT OF COURT RECORD HAS BEEN

RECEIVED BY THIS DEPARTMENT STATING THAT YOU WERE
ARRESTED ON 03/17/2007 AND CONVICTED ON 06/27/2007 IN
THE MUSKEGON DISTRICT COURT FOR THE OFFENSE OF
OPERATED WHILE IMPAIRED BY LIQUOR.

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 PURSUANT TO MCL 257.319-B, IT IS THEREFORE ORDERED
THAT YOUR VEHICLE GROUP DESIGNATION – COMMERCIAL
MOTOR VEHICLE DRIVING PRIVILEGES – BE:

SUSPENDED FROM *07/18/2007* THRU MIDNIGHT OF

*07/17/2008*.

A CDL HOLDER IF CONVICTED OF A TRAFFIC OFFENSE IN A

NON-COMMERCIAL MOTOR VEHICLE IS SUBJECT TO THE
SAME SANCTIONS AS IF THOSE OFFENSES OCCURED IN A
COMMERCIAL VEHICLE.

The MATS transit systems manager held an informal administrative

hearing with Grievant on July 12, 2007, and on July 17, 2007, terminated

Grievant effective July 18, 2007. The Union filed a grievance on July 23, 2007,

which the transit systems manager denied in a memorandum dated July 26,

2006, in which he explained:

The job description for a County of Muskegon Bus Operator indicates

that, “As a condition of continued employment, employees in this class
are required to possess and maintain a Michigan Commercial Drivers
License with BP endorsements….” You were dismissed from your
position with the County, effective July 18, 2007, pursuant to notification
from the State of Michigan Department of State that your CDL privileges
were suspended. With this licensing action, you were unable to meet the
continued minimum requirements of the Bus Operator position.

The Union demanded arbitration, and a hearing was held on January 25,

2008, in the County’s personnel department in Muskegon. The facts are

undisputed. The parties bound 21 Joint Exhibits in a helpful notebook, indexed

as follows:

1. The Collective Bargaining Agreement – 2005 through 2008.

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 2. Notice of Informal Administrative Hearing (Discharge).
3. Grievance dated July 23, 2007.
4. July 26, 2007, Response to Grievance.
5. August 9, 2007, Step 2 Response.
6. August 16, 2007, extension of time limits.
7. September 14, 2007, Request for Arbitration Panel.
8. Breath, Blood, Urine Test Report dated March 17, 2007.
9. Order of Action dated July 2, 2007 (restrict driver’s license).
10. Order of Action dated July 2, 2007 (CDL).
11. Printout concerning violation and conviction.
12. Certificate of Completion Alcohol Highway Safety Education
dated September 15, 2007.
13. Notice of Driver Responsibility Fee dated July 13, 2007.
14. Notice of Written Reprimand dated October 10, 2004.
15. Documentation of Oral Warning dated February 23, 2007.
16. Job description – Transit Attendant.
17. Job description – Bus Operator dated March 2, 1998.
18. Job description – Bus Operator dated February 27, 1995.
19. Job description – Bus Operator dated August 11, 1992.
20. Job description – Bus Operator dated December 17, 1982.
21. MATS Driver Manual March, 2003 (excerpts).

Briefs were filed by February 22, 2008, as agreed.

II. Excerpts from State Laws and Federal Regulations

II.A. Michigan Vehicle Code, Michigan Compiled Laws Chapter 257

Sec. 4b.

“Bus” means a motor vehicle designed for carrying 16 or more passengers,

including the driver. Bus does not include a school bus.

Sec. 6.

(1) Except as otherwise provided in subsection (3), “chauffeur” means any

of the following: (c) A person who operates a bus or school bus.

Sec. 33.

“Motor vehicle” means every vehicle that is self-propelled,

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Sec. 40.

“Person” means every natural person, firm, copartnership, association, or

corporation1 and their legal successors.

Sec. 301.

(1) Except as provided in this act, a person shall not drive a motor vehicle
upon a highway in this state unless that person has a valid operator's or
chauffeur's license with the appropriate group designation and indorsements
for the type or class of vehicle being driven or towed.

(4) A person shall not drive a motor vehicle as a chauffeur unless that person
holds a valid chauffeur's license. A person shall not receive a chauffeur's
license until that person surrenders to the secretary of state a valid operator's
or chauffeur's license issued to that person by this or any state or certifies
that he or she does not possess a valid license.

Sec. 326.

No person shall knowingly authorize or permit a motor vehicle owned by

him or under his control to be driven by any person in violation of any of the
provisions of this act.

Sec. 327.

No person shall knowingly employ any chauffeur to operate a motor vehicle

who is not licensed as provided in this chapter.

II.B. Commercial Driver's License Standards; Requirements and

Penalties, 49 Code of Federal Regulations Part 383

§383.3 Applicability.

(a) The rules in this part apply to every person who operates a
commercial motor vehicle (CMV) in interstate, foreign, or intrastate
commerce, to all employers of such persons, and to all States.

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The Employer is a corporation within the meaning this statute. MCL Sec. 45.3 (“Each organized county shall be
a body … corporate”). “Body corporate” means corporation. Merriam-Webster's Dictionary of Law ©1996.

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§383.5 Definitions.

Commerce means (a) any trade, traffic or transportation within the

jurisdiction of the United States between a place in a State and a place
outside of such State, including a place outside of the United States
and (b) trade, traffic, and transportation in the United States which
affects any trade, traffic, and transportation described in paragraph (a)
of this definition.

Commercial driver's license (CDL) means a license issued by a

State or other jurisdiction, in accordance with the standards contained
in 49 CFR Part 383, to an individual which authorizes the individual
to operate a class of a commercial motor vehicle.

Commercial motor vehicle (CMV) means a motor vehicle or

combination of motor vehicles used in commerce to transport passengers
or property if the motor vehicle-(c) Is designed to transport 16 or more
passengers, including the driver;

Employer means any person (including the United States, a State,

District of Columbia or a political subdivision of a State) who owns or
leases a commercial motor vehicle or assigns employees to operate
such a vehicle.

Interpretation for Part 383 [from US Department of Transportation, Federal

Motor Carrier Safety Administration], §383.5 Definitions

Question 8: Is an employee of a Federal, State, or local government

who operates a CMV, as defined in §383.5, including an emergency
medical vehicle, required to obtain a CDL? If so, why are such drivers
considered as operating "in commerce?"
Fed
Guidance: Government employees who drive CMVs are generally
required to obtain a CDL. However, operators of firefighting and
related emergency equipment may be exempt from the CDL
requirement [53 FR 37313, September 26, 1988], at a State's
discretion. Drivers of large advanced life support vehicles operated by
municipalities would therefore, at a State's discretion, qualify for the
exemption.

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 Government employees who drive CMVs are operating in
"commerce," as defined in §383.5, because they perform functions
that affect interstate trade, traffic, or transportation. Nearly all
government CMVs are used, directly or indirectly, to facilitate or
promote such trade, traffic, and transportation.

§383.37 Employer responsibilities.

No employer may knowingly allow, require, permit, or authorize a

driver to operate a CMV in the United States:

(a) During any period in which the driver has a CMV driver's license
suspended, revoked, or canceled by a State, has lost the right to
operate a CMV in a State, or has been disqualified from operating a
CMV;

§383.51 Disqualification of drivers.

(a) General. (1) A driver or holder of a CDL who is disqualified must not
drive a CMV.

(a)(2) An employer must not knowingly allow, require, permit, or

authorize a driver who is disqualified to drive a CMV.

(a)(3) A driver is subject to disqualification sanctions designated in

paragraphs (b) and (c) of this section, if the holder of a CDL drives a
CMV or non-CMV and is convicted of the violations.

Table 1 to §383.51

If a driver operates a motor vehicle and is convicted of: 1) Being under

the influence of alcohol as prescribed by State law.

For a first conviction or refusal to be tested while operating a non-

CMV, a CDL holder must be disqualified from operating a CMV
for…1 year

§383.53 Penalties.

(a) General rule. Any person who violates the rules set forth in
subparts B and C of this part may be subject to civil or criminal

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 penalties as provided for in 49 U.S.C. 521(b).

III. Provisions of the Collective Bargaining Agreement

Section 3.1:

The employer hereby retains and reserves unto itself, without limitation,
all powers, rights, authority, duties, and responsibilities conferred upon
and vested in it by the laws and the Constitution of the State of Michigan
and of the United States. Further, all rights which ordinarily vest in and
are exercised by employers except such as are specifically relinquished
herein are reserved to and remain vested in the Employer. The right to
hire, promote, discharge or discipline, and to maintain discipline and
efficiency of employees, is the sole responsibility of the … Employer
except that Union members shall not be discriminated against as such. In
addition, the work schedules, methods and means of departmental
operation are solely and exclusively the responsibility of the Employer
subject, however, to the provisions of this Agreement, and applicable
law. It is agreed that except as abridged, delegated, modified or granted
by this Agreement, all of the rights, powers and authority the Employer
had prior to the signing of the Agreement are retained by the Employer
and remain within the rights of the Employer. (Emphasis supplied.)

Section 29.1.A:

The Employer and the Union agree that the provisions of this Agreement
in accordance with applicable federal and state laws shall be applied
equally to all employees … . (Emphasis supplied.)

Other provisions of the collective bargaining agreement (JX 1 or “CBA”) are

quoted or cited as needed.

IV. Discussion

There is not, and cannot be, any doubt that Grievant must have a CDL to

drive a bus for MATS. 49 CFR § 383.51(a)(1); MCL §§ 301(1), (4). Nor is

there, nor can there be, any doubt that MATS cannot employ Grievant as a bus

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driver unless he has a CDL, as both federal and state law mandate. 49 CFR §

383.37(a); MCL §§ 326, 327. The CBA itself requires the Employer to obey

federal and state law. §§ 3.1, 29.1.A.

What the Union does dispute is the Employer’s decision to terminate

Grievant instead of granting him a leave of absence until his CDL is restored,

offering him a position which does not require a CDL, or laying him off. Union

brief @ 1. Indeed, the Union is quite correct that neither federal nor state law

requires that Grievant be terminated merely because his CDL has been

suspended:

Question 1: §383.37(a) does not allow employers to knowingly use a

driver whose license has been suspended, revoked or canceled. Do
motor carriers have latitude in their resulting actions: firing,
suspension, layoff, authorized use of unused vacation time during
suspension duration, transfer to nondriving position for duration of the
suspension?

Guidance: Yes. The employer's minimum responsibility is to prohibit

operation of a CMV by such an employee. Interpretation for Part 383
[from US DOT, FMCSA], §383.37 Employer Responsibilities.

Thus the inquiry must focus upon the reasonableness of the Employer’s

action under the just cause provision of the CBA, § 8.3.B.

The Union points out that neither impaired driving nor suspension of a

CDL is among the offenses specifically listed as grounds for discipline in

CBA § 21.2, “Disciplinary Actions”. Union brief @ 9-10. The Employer

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responds that the list is not intended to be exclusive, quoting language from

that same § 21.2:

While the groups of offenses listed below are generally broad, the
parties recognize that these lists of possible offenses do not include all
possible matters that may be proper cause for disciplinary action.

The Employer goes on to quote from Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 6th ed 2003) @ 932:

Where an agreement specifies certain types of misconduct for which

employees may be disciplined, the employer may also impose
discipline for other types of misconduct, if the specified offenses are
merely illustrative and not exclusive. (Footnote omitted.)

Employer brief @ 12-13.

To the arbitrator, the offense listed which comes closest to the instant

case is found among the Group 3 Offenses, for which “immediate discharge”

is the penalty specified:

Consumption of alcoholic beverages on County property, in County

vehicles or during working time. CBA § 21.2, Group 3 Offense D.

Given this specific contractual language, which appears to establish a per se

rule against drinking on the job, irrespective of the amount of alcohol

consumed, it is hardly a stretch to conclude that actual impaired driving

which leads to loss of the essential CDL is subsumed by the CBA’s general

language about “possible matters that may be proper cause for disciplinary

action.”

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 The Union further argues that such a conclusion would constitute a

“new rule” which would have to be negotiated pursuant to CBA § 21.3:

All new rules and regulations for the breach of which an employee
may be discharged or disciplined shall be negotiated with the Union
before adoption. Copies of work rules shall be made available to all
employees.

If the Union were correct, then the arbitrator would be powerless to

promulgate a new rule, inasmuch as his authority is limited by the contract:

The arbitrator shall have no power or authority to add to, subtract

from, alter or modify the terms of this Agreement, or to set a wage
rate. CBA § 20.3.

However, the evidence is conclusive that neither the Employer nor the

arbitrator has created a new rule. Quite to the contrary, the job requirements

of a CDL and no impaired driving precede Grievant’s employment by many

years. The 1982 job description for Bus Operator – Full Time provides in

pertinent part:

A. Required Experience and Training

4. Must have an excellent driving record which satisfies the
following characteristics:
b. No record of impaired driving or driving under the influence.

C. Additional Requirements
As a condition of continued employment, employees are required to
possess and maintain a valid Michigan Chauffeur’s license. JX 20,
emphasis supplied.

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 In 1992, the job description was titled Bus Operator, Required

Experience and Training A.4.b was designated as A.3.b, and the Additional

Requirements were revised to read:

B. Additional Requirements
As a condition of continued employment, employees in this class are
required to possess and maintain a Michigan Group B CDL with a
Passenger Transport and Air-Brake Endorsements and Michigan
Chauffeur’s License. JX 19, emphasis supplied.

Further minor changes were made to the pertinent parts of the Bus

Operator job description in 1995, when Required Experience and Training

A.3.b was retained but the Additional Requirements were modified to read:

Prior to starting employment and as a condition of continued

employment, employees in this class are required to possess and
maintain a Michigan Group B CDL with a Passenger Transport and
Air-Brake Endorsements and Michigan Chauffeur’s License. JX 18,
emphasis supplied.

The current Bus Operator job description, which was drafted in 1998,

reads in pertinent part:

A. Required Experience and Training

4. Have an excellent driving record which satisfies the following
characteristics:
b. No record of impaired driving or driving under the influence
offenses.

B. Additional Requirements
As a condition of continued employment, employees in this class are
required to possess and maintain a Michigan Commercial Drivers
License with BP endorsements and comply with federally-mandated
drug and alcohol testing programs. JX 17, emphasis supplied.

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 In addition to these job descriptions, the MATS Driver Manual, for

which Grievant signed a receipt in 2003 (JX 21), states:

All operators are required by law to have a valid Michigan Group B,

Commercial Drivers License with air brake and passenger
endorsements. NO OPERATOR will be permitted to drive a MATS
bus without a license in their possession. Obtaining and renewing a
CDL is the sole responsibility of each operator. JX 21, emphasis in
original.

Thus, beyond peradventure there is nothing new about the Employer’s

requirement that a bus driver possess and maintain a CDL. Perhaps more

importantly, it’s the law. The meaning of the phrase, “a condition of

continued employment” could not be clearer—no CDL, no bus driving job.

The Union, however, is correct that the Bus Operator job description

has been superseded in certain respects by the CBA, for Union employees.

For example, although the job description requires “Less than five (5) points

on driving record,” the CBA provides only successive suspensions followed

by discharge for accumulating 5 or more points. § 21.2, Group 2 Offense H.

Union brief @ 6, 8-9. This is not to say, of course, that the requirement does

not apply to prospective employees, for whom the description is intended.

For example, it would apply to Grievant if he were to apply for a Bus

Operator position after his CDL is restored, as he received 6 points for his

DWI. Union brief @ 3.

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 As stated earlier, one of the Union’s complaints is that Grievant

should have been granted a leave of absence until his CDL is restored. The

CBA does indeed provide for several types of leaves without pay, the one

relevant here being under § 16.3.D, “To cover disciplinary leaves

(suspension without pay).” There are several objections to this complaint.

In brief @ 13, the Employer points out that the longest disciplinary

leave afforded under the CBA is 7 days. This is because the longest

suspension that can be imposed under § 21.1 is 7 days, and § 16.1 provides

that “[t]he leave of absence will expire based on the type of leave specified

in Section 16.3.” Grievant’s CDL was suspended for an entire year—far

more time than the CBA accommodates.

The refusal to grant an equipment operator a 90-day leave while he

served a jail sentence for DUI was upheld in Genesee County Road

Commission and Service Employees International Union, Local 79, AFL-

CIO, 93-2 ARB ¶3303 (Allen Arb 1993). As a result of the DUI conviction,

the operator lost his CDL required for his job and was terminated. After he

regained a restricted license which would have enabled him to return to

work, the Road Commission declined to rehire him because of a hiring

freeze. The arbitrator ruled that the employer did not violate the collective

bargaining agreement in any respect.

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 The Union suggests that Grievant should have been offered a job with

the County, which does not require a CDL. The CBA does not call for such

an accommodation. Most importantly, Grievant has failed to apply for any

other position with the County and testified that he has never wanted to be

anything but a bus driver. He had a full four months between the date of his

arrest and the date of the suspension of his CDL to seek to effect a transfer

to another County job, but he did nothing. The County’s director of public

facilities testified that it is difficult to create a position in mid year, because

of budgetary considerations. Under these circumstances, it would be

manifestly unreasonable to require the County to transfer Grievant to a

different job. He was employed to drive a bus and was terminated because

he no longer could do so legally.

Finally, the Union’s argument that Grievant should have been laid off

is contrary to the concept and to the CBA. A layoff is an interruption of

employment caused by lack of work. Elkouri & Elkouri, supra, @ 782-783.

There is no evidence that there has been a “reduction in personnel” within

the meaning of CBA § 18.1. If there had been one, numerous employees

would have to be laid off before Grievant, with his 11 years’ seniority.

The reasonableness of a policy of terminating bus drivers for driving

under the influence was upheld in ATC/VANCOM of California, LP and

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Service Employees International Union, Local 707, AFL-CIO/CLC, 111 LA

244, 98-2 ARB ¶5348 (McKay Arb 1998), a case where, like here, the

offending conduct occurred off-duty while the employee was driving his

own vehicle. In upholding the employer’s termination policy, the arbitrator

reasoned:

The Employer outlined a number of reasons why driving under the

influence has a serious, negative impact on its business. First, the
employee loses the right to drive for a period of time. Secondly, the
conviction of driving while under the influence negatively impacts on the
Employer's ability to obtain insurance. Next, the conviction of a DUI
undermines to some extent the public confidence in the individuals hired
to drive buses. Finally, an employee who is retained after receiving a DUI
may increase the potential liability for the Employer in a subsequent
accident in which that employee is involved on the basis the Employer
knew or should have known that the employee was an unsafe driver as
demonstrated by the DUI conviction. These reasons are all legitimate
business reasons for not retaining the services of an employee who is
convicted of a DUI. Certainly, the Employer is not required to fire an
employee who is convicted of a DUI, but if the Employer makes a
business decision to terminate employees who have been convicted of a
DUI, there are legitimate grounds for doing so. 111 LA @ 248, 93-2
ARB @ 7028-7029.

Similar concerns were expressed by County managers in this case. The

director of public facilities testified that public safety is of great concern.

MATS’ public image is important because people have a choice in deciding

whether or not to ride its buses. MATS derives part of its revenue from its

ridership, which could be jeopardized. Yet another concern appears in the

Driver Manual (JX 21), which, in addition to emphasizing public safety,

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reminds that “the safe keeping of thousands of dollars of MATS equipment has

been placed in [a driver’s] hands.” These are all sound and even obvious

business considerations which serve to justify the Employer’s bus driver

termination policy.

The County in no way treated Grievant unjustly. To the contrary, his

plight is entirely of his own making. The County had nothing whatsoever to do

with any of the operative events which led to the loss of Grievant’s CDL.

Grievant admitted that he knew he would lose his CDL if he had an alcohol-

related conviction, yet he nevertheless chose to drink and drive. The laws that

Grievant broke were not even the County’s, which had no input into the

penalties assessed against him. The County merely enforced state law, federal

regulations, and its own long-standing requirement that bus drivers have a CDL.

V. Award

For all the foregoing reasons, the grievance is DENIED.

VI. Comments Obiter

This is an unfortunate case for all concerned, Grievant, Employer, and

arbitrator alike. Grievant had over a decade of experience. He loved his job. He

had never had a moving violation prior to the incident in question. MATS’

transit systems manager described him as “a good person, a good person to

work with.” Grievant was not roaring drunk; he simply had a couple of drinks

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too many on a really bad day. The arbitrator is aware of the current job market

in Michigan. The federal and state rules are hard, but neither the Employer nor

the arbitrator has any discretion over their application to Grievant. The

consequences of his single misstep are sobering.

Dated February 29, 2008 _____________________________

E. Frank Cornelius, Arbitrator

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