This dispute is between the Brotherhood of Maintenance of Way Employes (BMWE or Organization) and Southeastern Pennsylvania Transportation Authority (SEPTA or Carrier) (collectively the Parties). The dispute arises out of the Carrier's January 12, 2010 discharge of Reginald L. Morrow (Morrow or Claimant), a BMWE equipment operator.
BMWE appealed the Claimant's discharge through the grievance steps of the Agreement Between SEPTA and BMWE RRD, December 5, 2006 (CBA), Article IV, Section 401. Grievance Handling. The Parties were unable to resolve the dispute through the CBA grievance procedures. On April 8, 2010, the Parties agreed to list the dispute for resolution before this Board.
On July 21, 2010, a hearing was held by Special Board of Adjustment 957 (Board) at SEPTA's office, 1234 Market Street, Philadelphia, Pennsylvania. At hearing, BMWE was represented by Sean D. Gerie, General Chairman, Commuter Railroad System Division, Brotherhood of Maintenance of Way Employes. SEPTA was represented by Brian A. Casal, Esq., Buchanan, Ingersoll & Rooney, P.C. The Parties were each afforded a full opportunity to present testimony, documents and other evidence; to examine and cross-examine witnesses; and to challenge documents and other evidence offered by the other Party.
BMWE's witness was Reginald L. Morrow, the Claimant. The witness was sworn and not sequestered, and a transcript (Tr) was taken. The Parties had filed pre-hearing submission which include Union Exhibits (Ux) and Carrier Exhibits (Cx) which were offered and received into the record.
The Parties agree there are no issue of timeliness, grievability or arbitrability, and the dispute is ripe of an Award.
On December 16, 2009, SEPTA assigned the Claimant and an assistant to transport two cable reels from SEPTA's Wayne Junction to Liberty Yard. The Claimant picked up the reels at Wayne Junction with boom truck and transported them to Liberty Yard. At Liberty Yard, he raised the boom and store room employee removed the reels with a fork lift. The Claimant got into the boom truck and drove away without lowering the boom.
Once outside Liberty Yard, at the intersection of Windrum and Wayne Avenues, the raised boom snagged overhead electrical wires then pulled down the wires, a traffic signal and line poles. The falling cables and poles struck and damaged the boom truck and four parked cars. The Claimant reported the accident to the Carrier, but told his supervisors that the boom was down in its saddle and that the electrical wires must have been low.
Video taken by SEPTA's Liberty Yard surveillance camera established that the Claimant drove away with the boom up which caused the Claimant to change his story and apologize in writing. Morrow's written apology states:
The record establishes that this was not the Claimant's first accident. His disciplinary history includes: a documented verbal warning for failing to back-up a vehicle safely and damaging its bumper; a written warning for leaving the boom truck unattended; a one-day administrative suspension for sleeping on duty; a three-day suspension for backing a snow truck into a sign post; a discharge, reduced to a three-day suspension, for failing to follow supervisor's instruction; and a discharge, reduced to a suspension under a Last Chance Agreement, for carelessly damaging a boom truck.
mistake and discharge is too severe. This argument directly contradicts the LCA which provides that the Claimant is at the last step of discipline because this incident occurred well within 730 calendar days of the LCA. For these reasons alone, the Claimant's discharge is for just cause.
In addition, safety is paramount in the railroad Industry, because any thoughtless or careless act may result in catastrophic loss. As a result of the Claimant's inattention, the boom snagged overhead-electrified lines, poles and traffic lights, and pulled them down and through an intersection. Initially, the Claimant lied about the boom being down until he learned of SEPTA's surveillance video. The Claimant's actions are severe enough to warrant termination and under the LCA, termination is required.
This is the case because, the last step of discipline can have only one meaning, which is the last step of progressive discipline or, in this case, discharge. Furthermore, Morrow admits the infraction. Accordingly, termination is required.
The BMWE claims that the punishment does not fit the infraction which directly contradicts the CBA and the LCA and therefore, overturning SEPTA's discipline in this case is not justified.
For all of the reasons, SEPTA requests that the Board deny the grievance in its entirety and uphold the discharge.
The Carrier's discharge of the Claimant is arbitrary and unwarranted. Although there is no dispute regarding the fact, the ultimate penalty of dismissal is not warranted because the Claimant simply made a mistake.
There were mitigating factors which unfortunately contributed to the incident which the Claimant explained in his written statement. The explanation does not totally absolve the Claimant of responsibility but does shed light contributory factors. The Claimant's assistant could have easily observed that the boom was not cradled and advised the Claimant, but the assistant was not questioned by SEPTA.
BMWE is not requesting that the Claimant be given another LCA, but the Organization is grieving the Carrier's dismissal on the basis it is arbitrary and excessive
This incident admittedly was an accident and does not automatically require discharge. In particular, the Claimant was not under an LCA requiring automatic dismissal. If the Board determines that the Claimant has some responsibility for the accident, then the Board should find that the ultimate penalty of discharge is arbitrary, unjust and unwarranted.
The facts are not in dispute. It is the meaning of the facts on which the Carrier and the Organization cannot agree. In this regard, ultimately, the Claimant as well does not dispute the facts regarding his failure to lower the boom into its cradle which caused the damage to overheard wires, poles, SEPTA's boom truck and parked cars at Windrum and Wayne Avenues.
The Board's determination of the issue in this dispute turns on the interpretation of the LCA. The LCA contains two provisions material to future discipline of the Claimant.
Under the first provision at % 3., the LCA places the Claimant on a one-year probationary period starting on May 13, 2008. During this probationary period, the Claimant was subject to an immediate discharge for any work rule infraction. Since the LCA is dated July 17, 2009, the probationary period had passed when the LCA was executed on June 17, 2009. (Cx1).
Under the second provision at 1 4., the Claimant was to remain at the last step of discipline for 730-calendar days. The facts establish that the incident forming the basis of this disciplinary action occurred well within 730-calendar days. Therefore, this second provision of the LCA applies to and constrains SEPTA's discipline of the Claimant.
CBA Article VI, Section 401(j)(i) describes the steps of progressive discipline as follows:
Carriers and Organizations negotiate and execute agreements like the LCA in this case based on the give-and-take of settlement negotiations. Their agreements often evolve over many, many years of labor relations history between parties. Each party is entitled to the benefits and burdens reflected in the terms of the settlements like this LCA. In response to BMWE's contentions, the Board finds no evidence in this record that SEPTA's adherence to the terms of the Claimant's July 17, 2009 LCA is unjust, arbitrary or unwarranted as argued by the Organization. Rather, SEPTA is carrying out its obligations under the terms of the LCA as agreed between the Parties.
Based on the record developed by the Parties, the Board finds that the plain language of the CBA and the LCA establish that the last step of discipline is discharge. Moreover, the LCA at ~5. provides for only one last chance. Therefore, the Board also finds that discipline of less than discharge in this case would vitiate the LCA and deny the Parties the benefits and burdens of the agreement to which they are entitled.
For all these reasons, the Board finds that the Carrier's discharge of the Claimant was for just cause.
