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March 10, 1976

Phillip R. Hilliard, Plaintiff
Armco Steel Corporation, et al., Defendants

Scalera, J.

The opinion of the court was delivered by: SCALERA


 The plaintiff, Phillip R. Hilliard, filed this action based on § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, et seq., as amended, which named Armco Steel Corporation and the Butler Armco Independent Union as defendants. The gravamen of the complaint is that the Union failed to take Hilliard's discharge to arbitration, thus allowing Armco to improperly discharge him in violation of the collective bargaining agreement.

 Both defendants filed motions for summary judgment, which motions were denied.

 Trial was held and the parties presented requested findings of fact, conclusions of law and trial memoranda.


 Hilliard was discharged in 1969 from his job at the Armco plant in Butler, Pennsylvania. Hilliard was a member of the Union which represents the production and maintenance employees at Armco's Butler plant. The contract between Armco and the Union contained a grievance procedure which constituted "the sole recourse with respect to any claim by an employee of a violation of the Agreement by the Company." Article VI, § 2 B 2.14; Article IX, § A.

 Hilliard was an alcoholic. Hilliard's drinking was such that he sought outside medical help in early 1960, and in 1967 and 1968. Hilliard's alcoholic condition in 1969 was preceded by eight to ten years of heavy drinking. In 1963, he was suspended for seven days for coming to work with a heavy hangover. In 1965, he was suspended for sixty days for coming to work under the influence of alcohol. There were numerous instances of bad workmanship and absenteeism. Hilliard was frequently warned about his drinking.

 On May 11, 1965, Hilliard was at work under the influence of alcohol. He was suspended for five days subject to discharge. On May 18, 1965, after a hearing, he was discharged. The reasons given were the numerous instances of reporting to work while under the influence of intoxicating liquors and other problems related to his drinking habits, including absenteeism and poor workmanship.

 The Union processed Hilliard's 1965 discharge to an informal hearing, at which the discharge was affirmed. The Union carried the grievance to Step III, at which point the Union succeeded in having the discharge converted into a sixty-day suspension. At the Step III proceedings, Hilliard promised to do anything necessary to hold his job. Hilliard did not dispute the fact that he was intoxicated at work nor did he deny his record of drinking problems. He admitted he was an alcoholic. He claimed that his discharge made him realize he could not control his problem without help and that since his discharge in May 1965, he had not had a drink and was attending AA meetings in order to learn how to help himself.

 The conversion of the discharge into a suspension was based on the following conditions, with the understanding that a violation of the conditions would result in immediate and final discharge:

1. The grievant is to abstain from the use of alcoholic beverages.
2. He is to continue to avail himself of the "AA" program.
3. He is to consult with the Plant Physician, at intervals determined by the Plant Physician, in order to assess the grievant's progress in controlling his problem.
4. The grievant must maintain satisfactory work and attendance records.

 The Union told Hilliard that this was his last chance and that he must comply with the conditions or lose his job. Hilliard did not comply with the terms set forth for his continued employment. Hilliard stopped attending AA meetings in 1967 or 1968. The written reports of those who treated Hilliard in 1969 show:

a. Plaintiff "freely indicated that he had a rather long history of alcohol related problems"; he stated that "he had multiple absenteeism, frequent warnings in reference to his drinking."
b. He was "best described as a simple alcoholic with no particular psychopathology underlying the addiction. A history indicates a gradual decline into the addiction over a considerable period of time."
c. "Mr. Hilliard admits having an alcoholic problem . . . Mr. Hilliard has a long history of absenteeism. The record indicates that most of the incidents of absenteeism resulted from his problem of alcoholism."

 On June 17, 18 and 19, 1969, without giving any prior notice, Hilliard did not report for work, although he was scheduled to report for work from 7:00 a.m. to 3:00 p.m. On the afternoon of June 19, Hilliard called in and asked to be placed on vacation status. He testified that this request was made because he was in such a condition after a heavy drinking episode that he could not drive to work. Hilliard had developed a pattern of missing two days of work and then taking unscheduled vacation. For example, six months before the June 1969 episode, he was absent without notice on two days, December 17 and 18, 1968, and then called his supervisor on the 19th requesting a vacation for the week, which request was granted. The same basic procedure was used in August 1967, when he reported off sick for two days, then called in and converted it to a week's vacation.

 Unreported absenteeism is under the contract cause for discharge. The Union agreement provides:

SECTION E -- Absenteeism
1. In recognition of the difficulties imposed upon Management through failure of employees to comply with working schedules, an employee reporting late for, or absenting himself from, work without prior notice and without just cause may be ...

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