NATIONAL MEDIATION BOARD, ADMINISTRATOR
SPECIAL BOARD OF ADJUSTMENT N0. 957
In the Matter of the Arbitration
-between-
Brotherhood of Maintenance of OPINION AND AWARD
Way Employes Award No. 262
-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:
1. The thirty (30) day suspension and
disqualification of Track Maintainer
Second Class Josue Gauthier for his
alleged violation of SEPTA Work Rule
No., 42 - Absence from Assigned Work
Area on January 13, 1998 was without
just and sufficient cause (System File
98-006-F12).
2. The Carrier's decision to terminate the
seniority of Track Maintainer Second
Class Josue Gauthier for allegedly
abandoning his position was without just
and sufficient cause, arbitrary and
capricious (System File 98-006-F12).
3. As a consequence of the violation
referred to in Parts (1) and/or (2)
above, Track Maintainer Second Class
Josue Gauthier shall now be reinstated
to service with seniority and all other
rights unimpaired and compensated for
all wage loss suffered.
A hearing was held in Philadelphia, Pennsylvania on March
20, 2003 at which time the Grievant and representatives of the
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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 waived. The
Board met in Executive Session after the hearing.
FINDINGS OF FACT AND OPINION OF THE BOARD
The record indicates that the Claimant began working for the
Employer on March 26, 1990 and served as a Track Maintainer. The
record substantiates that the Claimant, who occupied a safetysensitive position, was absent from his work assignment on
January 13, 1998. In particular, the record reflects that the
Claimant left his worksite without permission and remained away
from the worksite over an extended period of time on January 13,
1998. In fact, the evidence describes that the Claimant failed
to attempt to return to his worksite until certain supervisory
personnel observed the Claimant attempting to travel in an
opposite direction from his assigned work location.
In response to the special circumstances that existed in
connection with the Claimant's behavior, the credible evidence
confirms that the Employer permitted the Claimant to participate
in the Rehabilitation After Work Program. On March 1, 1998, the
Claimant executed a "Special Therapeutic Contract" that required
the Claimant to refrain from using certain substances and
beverages; that obligated the Claimant to attend all scheduled
treatment sessions in a timely manner; and that contained
additional obligations for the Claimant. (Employer Exhibit 13.)
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The record is uncontroverted that as of March 13, 1998 the
Claimant had failed to comply with the conditions of the March 1,
1998 contract and therefore was discharged from the
Rehabilitation After Work Program.
The Employer subsequently notified the Claimant in a letter,
dated April 6, 1998, that the Employer was considering
terminating the Claimant for failing to comply with the
requirements of the Rehabilitation After Work Program. (Employer
Exhibit 15.) After the Claimant had failed to contact the
Employer, the Employer issued a letter, dated May 4, 1998, that
terminated the Claimant for abandoning his job. (Employer
Exhibit 16.) Moreover, the record substantiates that the
Claimant became incarcerated from November 12, 1998 to March 6,
2000 due to certain events that arose in connection with a
domestic dispute.
A careful review of the record proves that the Claimant
unilaterally left his work assignment on January 13, 1998; failed
to make a reasonable effort to contact appropriate supervision
about his situation in a timely manner; and failed to make a
reasonable effort to return to work. Despite these failings by
the Claimant, the record indicates that the Employer provided the
Claimant with an opportunity to address his chemical dependency
problem. The record establishes that the Claimant failed to
comply with the terms of the rehabilitation program.
Under all of these circumstances, the Employer had a right
to impose the initial 30 day suspension because of the Claimant's
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absence from his assigned work area in violation of Rule No. 42
and a further right to terminate the Claimant for subsequently
abandoning his position. The record includes certain documentary
evidence that indicates the Claimant served as the Head Custodian
at an elementary school from April 2001 until August 2001 and
that he performed his job particularly well. (Employes, Exhibit
A-15.) The record also contains other documentary evidence that
describes the Claimant's leadership and other positive activities
from November 1998 through March 6, 2000. (Employes' Exhibit A15.) These favorable achievements, however, occurred after the
Employer had initiated disciplinary action against the Claimant
and do not absolve, excuse, or negate the Claimant's failure to
adhere to the reasonable rules and requirements of the workplace.
The Award therefore shall reflect that the Claim is denied.
Any other arguments raised by the parties during this proceeding
do not affect the outcome of the present dispute.
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:
1. The thirty (30) day suspension and
disqualification of Track Maintainer
Second Class Josue Gauthier for his
alleged violation of SEPTA Work Rule
No., 42 - Absence from Assigned Work
Area on January 13, 1998 was with just
and sufficient cause (System File 98
006-F12).
2. The Carrier's decision to terminate the
seniority of Track Maintainer Second
Class Josue Gauthier for allegedly
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abandoning his position was with just
and sufficient cause, and was not
arbitrary and capricious (System File
98-006-F12).
3. The Claim is denied.
R
t L. Do las
Chairman and Neutral Member
D. D. Bartholoma
Emp oy a Member
Concurring/Dissenting
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DATED:
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Patrick J. Bate
Carrier Member
Concurring/Dissenting