NATIONAL MEDIATION BOARD, ADMINISTRATOR SPECIAL BOARD OF ADJUSTMENT N0. 957

In the Matter of the Arbitration



Brotherhood of Maintenance of OPINION AND AWARD
Way Employes Award No. 262
-and
Southeastern Pennsylvania
Transportation Authority



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:









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: ~Z,a~


Patrick J. Bate
Carrier Member
Concurring/Dissenting