Atty Hykel Wins Reinstatement for Wrongly Terminated Boston School Bus Driver Represented By Steelworkers

A neutral arbitrator agreed that an employer does not have just cause to terminate a school bus driver merely for being involved in an accident or causing property damage - where the employer cannot show the employee was at fault or that the incidents were preventable .

Here, Boston Public School bus drivers are employed by an outside private company, Transdev, and represented by United Steelworkers, Local 8751. The collective bargaining agreement negotiated by the Union requires an employer to prove that termination is supported by just cause and entitles the Union to seek the opinion of an outside and independent arbitrator when it disputes a termination.

Transdev fired the Grievant because they claimed he was involved in three preventable accidents within two years. Transdev had the burden to provide credible evidence that the Grievant actually was involved in the accidents and, in so doing, violated employer's policies or exercised poor judgement. The arbitrator ruled that Transdev did so for only one of the three incidents relied upon to terminate the Grievant.

The Arbitrator refused to assume that a driver was at fault merely for being involved in an accident. "Assumptions...are not evidence, and any determination of preventability must be made on an individual, objective basis on the facts and circumstances of each accident."

In one case, Transdev could not establish that the accident involved Grievant. A witness credibly testified that his vehicle was damaged by a school bus, but could not establish persuasively that it was driven by Grievant, as opposed to other bus drivers. For another instance, the Grievant indisputably was involved in an accident that merely damaged a license plate. The accident occurred when the vehicle in front of the bus stopped abruptly to avoid a pedestrian that appeared in the road. The Arbitrator ruled that the employer failed to show the Grievant drove too fast or failed to keep an appropriate clearance before the car in front of the bus. Transdev could not persuade the arbitrator that this accident was preventable.

The Arbitrator ordered Transdev to reinstate the Grievant and make him whole for wages and benefits he lost as a result of the wrongful termination.