SPECIAL BOARD OF ADJUSTMENT NO. 957
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
"CARRIER"
and
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYEES
STATEMENT OF CLAIM:
"ORGANIZATION":
Award No. 5
Claim of the Brotherhood (BMWE-86-2-F12) that:
The dismissal of Track General Helper Roosevelt Brown
was without just and sufficient cause due to the Claimant's
medical condition and admitted alcohol problem.
REMEDY:
Claimant Roosevelt Brown shall be placed on a medical
leave of absence, and after his completion of the rehabilitation program and after he has passed his return to duty
physical, the Claimant shall then be reinstated to service
without loss of seniority, vacation rights, or any other
benefit or privilege he enjoyed prior to his dismissal.
OPINION OF THE BOARD
Claimant, R. Brown, was discharged on December 31, 1985 for
allegedly fighting with another employee and being under the influence
of intoxicants and/or drugs. The Organization seeks the Claimant's
reinstatement.
The arbitration hearing in this matter took place on July
3, 1987. The Claimant was present and represented by the Organization.
The basic facts are not complex. On December 20, 1985, the
date of the events giving rise to this claim, Claimant was a track
general helper and was working at a location designated as Philmont
Yard on Carrier's railroad division. Claimant engaged in an altercation with another employee, A. Hale. Claimant suffered injuries,
causing him to be taken to a hospital for treatment. Carrier
officials also suspected that the Claimant was intoxicated, and
therefore had him tested for drug and alcohol consumption. Claimant
tested positive.
Article IV, Section 402 (Arbitration) of the labor agreement,
cited by the parties, states in relevant part:
(a) If a satisfactory settlement of a grievance
cannot be reached between the parties at Step Three
of the Grievance Procedure, or there is a disagreement
as to the interpretation, application or performance
of this Agreement, the Union may, within thirty (30)
days from the receipt of SEPTA's Third Step answer,
request that the grievance be arbitrated
....
(i) The Board shall have no power to add to, or
subtract from, or modify any of the terms of this
Agreement; nor shall the Board substitute its discretion
for that of SEPTA or the Union where such discretion has
been retained by SEPTA or the Union; nor shall the Board
exercise any responsibility or function of SEPTA or the
Union.
,t ,t x
(n) It is agreed that failure to take a grievance
to the next higher step of the Grievance Procedure or to
Arbitration within the time limits specified shall be
construed as meaning that the grievance was settled at
the preceding step of the Grievance Procedure.
The time limits set forth in the Grievance and
Arbitration procedures may be extended in a particular
~i5~
instance by mutual agreement of SEPTA and the Union
confirmed in writing.
(p) In any case where the matter in dispute
involves the question of improper fare transaction
procedures, theft by an employee, an employee having
been under the influence of intoxicating liquor or
drugs, or of an employee leading an unauthorized work
stoppage, the only question which shall be determined
shall be with respect to the fact of proper registration of fares, theft, having been under such influence,
or leading an unauthorized work stoppage, as the case
may be, and if it is determined that in fact there was
not proper registration of fares or was theft or such
influence or such leading to a stoppage, then the
action of SEPTA based thereon shall be sustained.
The Carrier contends that the claim is not arbitrable under
the parties' labor agreement, as it was not processed to arbitration
in a timely fashion. It is further argued by the Carrier that
the claim itself is without substantive merit.
The Organization asserts that the claim is arbitrable, as
the contractual time limits for processing it were extended by
implicit agreement of the parties. Concerning the claim's substantive
merits, the Organization maintains that the penalty of discharge
was excessive under generally accepted disciplinary standards.
The Board finds the Carrier's argument concerning arbitrability
to be compelling. Article IV, Section 402 (a) of the labor agreement does require that the Union request that a claim be arbitrated
within 30 days of receipt from the Carrier of_a third step answer.
In this case, the Organization-did not file a request for arbitration
for approximately one year after receipt of the third step answer.
Moreover, although section 402(n) does allow the parties to mutually
agree to extensions of time limits for processing grievances,
such extensions must be confirmed in writing. Although the Carrier
here did not immediately raise the arbitrability defense, there
.v
q5~- 5
exists no written agreement to extend the 30-day time limit for
processing a claim to arbitration.
The Board further finds, however, that there is no need to
decide this case on the timeliness issue in order to properly
dispose of the claim. The substantive claim itself is clearly
without merit.
The evidence establishes that the Claimant committed dischargeable
offenses on December 20, 1985. While at work, he participated
in a fight with another employee and was under the influence of
alcohol. Article IV, Section 402(p) of the Agreement states that
once it is determined that an employee is intoxicated at work,
"then the action of [Carrier] based thereon shall be sustained."
Article IV, Section 402(i) states that the Board has no power to modify
the agreement, and shall not substitute its discretion for that
of Carrier where the Carrier has retained that discretion. Accordingly, notwithstanding the Organization's strenuous representation
and the Claimant's commendable attempt to confront and overcome
his personal problems, the claim must be denied.
AWARD -
Claim denied.
X, X
R. B. BIR BRAUER W. E.' LaRUE
Carrier Member Organization Member
S. E. BUCHHEIT
Neutral Member
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