Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Discharge of transit driver for use of excessive force on unruly passenger too severe, (Mar 19, 2025)

By WK Editorial Staff

The arbitrator observed that when a bus operator observes another operator having a difficult time, it is appropriate that the bus driver assist his fellow operator in reasonable ways.

A union challenged the termination of a bus operator who allegedly used excessive force while assisting a fellow driver in restraining an unruly passenger in violation of an employer’s de-escalation policies. The union argued that the operator acted in good faith and did not merit termination. The arbitrator sustained the grievance in part. The arbitrator found the use of force was unnecessary but ruled that termination was too severe, citing the operator’s 20 years of service and lack of major infractions. The penalty was reduced to a disciplinary suspension without back pay, and the employer was ordered to reinstate the operator with full seniority and benefits (Cobb County Transit and Amalgamated Transit Union, Local 732 (Jan. 6, 2025) (Luers, Arb.)).

Bus operator. Cobb County provides and maintains a transit system transporting its citizens and visitors. Passengers are often those who solely depend upon the services of the transit system for purposes of getting from point to point safely and reliably.

The employee has been a bus operator for approximately 20 years. Operators are trained on diffusing conflict upon hire and a similar training program is utilized during monthly in-service meetings. It was unrebutted that the employee received safety training on de-escalation of tensions.

On May 30, 2024, the employee was placed on administrative leave as part of an investigation resulting from events that occurred on May 29, 2024, involving a transit bus route assigned to him.

Unruly passenger. The evidence revealed that the employee heard over his bus radio that there was an issue involving a nearby bus and fellow operator. As the employee approached the bus, he saw a fellow operator he believed to be in distress with a passenger. The passenger was engaged in both verbal and physical confrontation involving the bus operator. The employee assisted in restraining the passenger by placing his foot on the chest of the passenger when the passenger was on the ground already.

Investigation. The employer’s investigation revealed that the employee placed his foot on the unruly passenger’s chest after the passenger had apparently already been subdued by the other bus driver. The employer decided that the placement and restraining of the passenger by placing his foot on the passenger’s chest was excessive force and poor judgement on the part of the employee.

Employee alternatives. The arbitrator observed that when a bus operator observes another operator having a difficult time, it is appropriate that the bus driver assist his fellow operator in reasonable ways. However, he noted that the employee could have taken one of several other alternatives to address the matter. The employee could have used the other bus radio if his radio was not operating effectively to contact dispatch. He could have used his own cellphone, borrowed a cell phone from the other operator or the cell phone of others, including passengers, to ensure that the police were arriving, and to ensure that dispatch was being properly informed. With all these other alternatives short of using physical force, the employee had the opportunity to take appropriate action without using force himself on the unruly passenger.

Degree of discipline. Nonetheless, the arbitrator concluded that the employee was not so terribly at fault as to warrant his termination in this instance. Termination is the most severe form of punishment. The employee had received training on numerous occasions on how to avoid confrontations and de-escalate situations. However, there was no record of recent prior significant discipline evident.

Here, there was no indication of a need for self-defense on the part of the employee. Instead, he acted aggressively to leave the protection of his own driver’s seat, leave his passengers, and proceed to use force toward a passenger on another bus while not contacting dispatch. Under these circumstances, the employer had ample reason to consider that misconduct as a basis for discipline. It is only the degree of discipline with which the arbitrator had an issue.

The discipline imposed by the employer in this circumstance was based upon the operator’s failure to follow the safety training, training on de-escalation on conflict, and the employer’s general rule with regard to operators remaining behind the wheel. Nonetheless, the arbitrator concluded that the employee was not discharged for just cause, and directed the employer to reinstate him, restoring his full seniority and benefits but without backpay and/or benefits for the period he has been off work since his discharge.

Attorneys: Blanca Peralta for Cobb County Transit. James Atkins for Amalgamated Transit Union, Local 732.

Companies: Cobb County Transit; Amalgamated Transit Union, Local 732

Cases: Labor Arbitration ContractClaims UnionsMembers Discharge