NATIONAL MEDIATION BOARD, ADMINISTRATOR SPECIAL BOARD OF ADJUSTMENT NO. 957 In the Matter of the Arbitration -between-
Brotherhood of Maintenance of OPINION AND AWARD
 Way Employes Award No. 259
 -and
 Southeastern Pennsylvania
 Transportation Authority

 In accordance with the September 26, 1999 agreement in effect between the above-named parties, the Undersigned was designated as the Chairman and Neutral Member of the SEPTA-BMWE Public Law Board (the Board) to hear and decide the following Claim:


A hearing was held in Philadelphia, Pennsylvania on September 4, 2002 at which time the Grievant and representatives of the parties appeared. All concerned were afforded a full opportunity to offer evidence and argument and to examine and cross-examine witnesses consistent with the relevant procedures that exist between the parties. The Arbitrator's Oath was
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    d. While on probation, should Mr.

    Freeman be charged with

    committing any infraction for

    which discipline is justified,

    he shall be subject to an

    immediate discharge.

    (Carrier Exhibit 15.) The Carrier terminated the Claimant as a

    result of an incident that had occurred on Saturday, January 27,

    2001 at the Main Street crossing in Lansdale, Pennsylvania. In

    particular, the Carrier concluded that the Claimant had violated

    NORAC Operating Rule 30 by tampering with certain equipment, Rule

    41 by failing to perform certain assigned tasks, and Rule 64

    concerning defective equipment.


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        NORAC (Northeast Operating Rules Advisory Committee)


    Operating Rule 30 provides:


            30. Tampering with Appliances and Other

            Equipment


            Employees are prohibited from breaking seals on interlocking appliances or other equipment, except when specifically authorized to do so. Employees are prohibited from altering, nullifying or in any manner restricting or interfering with the normal intended function of any device or equipment on engines, cares or other railroad property, except when specifically authorized to do so.


            In case of failure, or where seals are found to be tampered with, broken, missing, or authorized to be removed, a report must be made immediately to the Dispatcher, Yardmaster, or Enginehouse Foreman in charge of the territory where the defect is discovered.


        The Work Rules for Employees of the Line Maintenance


    Department provide, in pertinent part, that:


            41. Refusal/Failure to Perform Assigned Work


                Refusal and/or failure to perform assigned work is cause for disciplinary action up to and including discharge.


            64. Defective Equipment


                Employees shall not use defective ladders, machinery, equipment or tools. Defective equipment shall be reported immediately to one's supervisor.


                Safety devices will not be modified, removed or made ineffective for any reason. No revision or additions to equipment, etc., shall be made without authorization by proper authority.


                Personal protective equipment furnished to employees by the Authority, such as goggles, respirators, etc., shall be


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                worn when the employee is exposed to the hazards for which such equipment is intended.

    A careful review of the record indicates that the Claimant violated these provisions. In particular, the record reflects that a train crew reported that the automatic crossing protection at the Main Street crossing had failed to come down in a timely manner. Maintenance Manager Mark A. Keller credibly testified that the report of the initial malfunction caused him to investigate the situation. The Maintenance Manager credibly explained that the crossing constitutes an especially busy intersection and that the presence of a constantly staffed crossing box enables manual operation of the gates in a way that disrupts traffic in the intersection for a shorter time than the automatic gates require. The Maintenance Manager credibly recalled that he had visited the Lansdale crossing box a short time after the report and had found the Claimant in the confined structure with a stick wedged in a vertical position into the foot pedal in a way that bypassed the automatic system and precluded the automatic gates from coming down. As a result, the Maintenance Manager credibly observed that the presence of the stick had the same effect as the manual operation of the foot pedal and therefore overrode the automatic operation of the gates.

    The Claimant denied having any knowledge about the presence of the stick and the use of the stick as a wedge to override the automatic operation of the gates. As confirmed by certain


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    photographs introduced as evidence into the present proceeding, the Claimant's denial lacks credibility because of the extremely close confines of the crossing box and the integral role of the foot pedal in manually operating the gates. Although the Claimant had denied being trained in a way that involved the operation of the manual pedal and also had denied ever having seen the stick, the record reflects that the Claimant had received sufficient training to operate the relevant equipment.

    A careful examination of the actual stick revealed that the stick measured approximately seven inches long and one-half of an inch wide. (Carrier Exhibit 21.) The close proximity of the foot pedal only inches away from the feet of the operator of the crossing box constitutes conclusive evidence that the operator of the crossing box would have virtually no way to avoid being aware of the presence of the stick wedged in the vertical position. As a result, the record proves that the Claimant had to have known about the presence of the stick in the wedged position.

    By permitting the stick to remain in the foot pedal to bypass the automatic gates, the Claimant permitted tampering with the equipment to occur in violation of NORAC Operating Rule 30; failed to perform the assigned work of operating the crossing box equipment in a proper manner in violation of Work Rule 41; and permitted the modification of the foot pedal in a way that made this safety device ineffective in violation of Work Rule 64. Under all of these unusual circumstances, the Carrier had justification to discipline the Claimant.


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    As previously mentioned, the Claimant had entered a Return to Work Agreement to avoid a prior discharge of the Claimant. Paragraph 1(d) of the Return to Work Agreement specifically authorized the Carrier to discharge the Claimant immediately for "committing any infraction for which discipline is justified." As a consequence, the Carrier proved by clear and convincing evidence that just cause existed to terminate the Claimant. In reaching this conclusion, the record omits any credible evidence that the discharge of the Claimant was unjust, unwarranted, and based on unproven charges. Any other arguments raised by the parties during this proceeding are not relevant to a proper determination of the present dispute. The Award shall indicate that the Claim is denied.

    Accordingly, the Undersigned, duly designated as the Chairman and Neutral Member of the SEPTA-BMWE Public Law Board and having heard the proofs and allegations of the above-named parties, makes the following AWARD: The Claim is denied.


                      Robert L. Doqglas

                  Chairman and Neutral Member


Henry . Wise, J f. ey eridan
 Empl yee Member arr' _ Member
 Concurring/Dissenting a Dissenting
 DATED: a z

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