Transit union challenges new policy on cell phones

A Metro Transit bus driver hit a parked car's mirror after his cell phone started ringing. Another driver was caught by a supervisor holding what looked like a cell phone to his ear.

Both drivers faced strict discipline for violating Metro Transit's new cell phone policy -- at least 20 days unpaid suspension and a final warning letter. The union that represents Metro Transit drivers, light-rail operators and other workers contested the discipline and both cases ended up in arbitration. The decisions, which were issued earlier this month, highlight the tension between Metro Transit and Amalgamated Transit Union 1005 over the new rules, which say that all cell phones and personal electronic devices must be turned off and stowed away from the driver's person while operating a bus or train.

While both sides agree that drivers shouldn't be chatting on their cell phones while they navigate a 40-foot bus full of passengers, union leadership said the policy subjects drivers to the same harsh punishment even if they forget to shut off their phone. Two violations of the rule result in termination, no matter how much time has passed in between.

"Our issue is: Does the punishment fit the crime?" said Michelle Sommers, the union president.

Metro Transit officials pointed to other cities where cell phone policies are more strict. Last year, the Chicago Transit Authority banned most bus drivers and rail operators from using or possessing cell phones, PDAs, MP3 music players and other electronic devices while on the job, with some exceptions for bus drivers who are not issued company radios. The mass transit authority in the Boston area also bans employees from carrying cell phones on buses and trains. Any employee caught texting or talking on a phone can be immediately fired.

Julie Johanson, deputy chief of bus operations for Metro Transit, said there is a sense of urgency in the transit industry in light of several high-profile accidents across the country that happened while transit operators were texting or talking on cell phones.

"We felt we needed to send a strong message to our operators," Johanson said.

The transit union challenged the new policy immediately after it went into effect in December 2009, claiming that it violated the union's contract. The contract language says that Metro Transit can't consider an employee's previous disciplinary record if an incident is more than three years old. An arbitrator decided that the union couldn't fight the policy because the contract also allows the company to establish rules related to safety. Instead, the union had to wait for a specific incident to challenge.

On March 19, a Metro Transit supervisor reported that she saw Gerald Snyder holding a cell phone to his ear while driving his empty bus to the transit garage. Snyder said he wasn't on a cell phone and had been scratching his ear.

In cases where an observer reports wrongdoing by a driver, Metro Transit doesn't typically discipline the driver if video from the bus can't back up the claim, according to the arbitrator's decision. In Snyder's case, the video was inconclusive, but transit officials still suspended him because they said the supervisor had many years of experience observing drivers and was reliable.

Snyder provided his cell phone records, which showed that no calls had been made that morning. During the arbitration hearing, he said that he would lie to save his job, according to the decision.

The arbitrator ultimately upheld Snyder's discipline, writing that the supervisor "is an exceptionally credible witness." The arbitrator also wrote that the cell phone records weren't conclusive because Snyder could have been using another phone.

"Now, if a supervisor says you did it, you did it," she said. "How do I prove my innocence?"

Another driver, Jay Webber, was given a 30-day suspension and final warning letter after his cell phone rang while he was driving a bus in February. Moments later, the bus hit the mirror of a parked car. Metro Transit said he didn't get out of the bus to see what he had hit. Instead he stopped the bus and without setting the brake, reached for his cell phone to turn it off.

Metro Transit gave him an additional 10-day suspension because he was involved in an accident while violating the cell phone policy. The union argued that the punishment shouldn't have been so harsh because Webber unintentionally violated the policy. The arbitrator agreed and ruled that he should be paid for 10 days of the suspension and the final warning letter should be removed from his record.

Johanson said the policy seems to have made an impact and the majority of drivers haven't had a problem adjusting. Out of more than 1,400 drivers, 21 have violated the policy from last December until this October, she said. In 2009, Metro Transit received 82 customer complaints about cell phone use by drivers, but so far this year there have only been 13 complaints.