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October 22, 1976

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY TRANSPORT WORKERS UNION OF PHILADELPHIA LOCAL NO. 234 OF TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO JOHN J. McCONNON, sued individually and in his official capacity as Chairman of the Board of Directors for Southeastern Pennsylvania Transportation Authority WILLIAM R. EATON, sued individually and in his official capacity as General Manager, Southeastern Pennsylvania Transportation Authority R. J. EASTBURN, sued individually and in his official capacity as Superintendent, Southeastern Pennsylvania Transportation Authority NED LEDONNE, sued individually and in his official capacity as President of the Transport Workers Union of America AFL-CIO, Local No. 234 JOSEPH BEPKO, sued individually and in his capacity as Official of the Transport Workers Union of America, AFL-CIO Local No. 234 And Other UNKNOWN INDIVIDUALS

The opinion of the court was delivered by: LUONGO

 Plaintiff, Phillip Nelson, brought suit against his former employer, Southeastern Pennsylvania Transportation Authority (SEPTA); three of SEPTA's officers; the Union of which he was a member, the Transport Workers Union of Philadelphia, Local 234 AFL-CIO (Union); and two officers of the Union. Plaintiff's complaint, as amended, charges that SEPTA discharged plaintiff without just cause and without adequate notice or hearing, and thereby violated plaintiff's rights under the Fourteenth Amendment to the Constitution; the Civil Rights Act, 42 U.S.C. § 1983; and the Pennsylvania Metropolitan Transportation Authorities Act of 1963, 66 P.S. § 2001, et seq. The complaint further charges that the Union breached its duty to fairly represent plaintiff in his grievance of the discharge. Finally the complaint charges that the Union and SEPTA conspired to violate plaintiff's rights.

 The defendants jointly filed a motion to dismiss the complaint. Accompanying the motion was an affidavit and other materials beyond the pleadings. Under Fed. R. Civ. P. 12(c) the motion could properly be treated as one for summary judgment under Rule 56. The parties so regarded it, and plaintiff filed a supplemental memorandum, together with an affidavit, and defendants filed a supplemental memorandum.

 Because of the conclusion I reach as to abstention, I will not deal with the merits of the various contentions raised by defendants' motions, but I have nevertheless viewed the facts by the same standard as is required in dealing with motions for summary judgment, i.e., by resolving all material factual disputes against the moving parties. See First Pennsylvania Banking and Trust Co. v. United States Life Insurance Co., 421 F.2d 959, 962 (3d Cir. 1969). It is in that light that the facts are presented below.


 SEPTA was created by the Pennsylvania Legislature in 1963, and is responsible for providing public transportation in Philadelphia and the surrounding counties. SEPTA is an instrumentality and agency of the State, not of the cities and counties in which it operates, and it has been accorded all needed powers by the State. *fn1" See 66 P.S. § 2001, et seq.

 Nelson was requalified medically for the job of bus driver and transferred to that position on August 18, 1974. Early in October 1974 Nelson's previously described medical problems again became aggravated, and he stopped reporting for work. His personal physician advised him that he would be permanently unable to work as a bus driver. On October 6, 1974 Nelson was examined by the SEPTA physician, who found that Nelson's condition was not such as to make him permanently disabled or medically disqualified to work as a bus driver. At the time of the examination, however, Nelson requested that he be transferred to the job of cashier. On October 7, 1974 Nelson made a written application for the job of vehicle overhauler. On the same day he made an oral request to James O'Brien, a SEPTA personnel officer, to be transferred to the position of cashier. None of these requests was ever acted upon by SEPTA.

 On October 8, 1974 SEPTA sent Nelson written notice that unless he returned to work by November 6, 1974 he would exceed his sick leave and would be terminated. The letter did not indicate why Nelson's requests for transfer had not been granted, nor did it state what means were available to Nelson to contest his discharge, specifically it made no mention of a right to a hearing of any kind.

 On October 10, 1974 Nelson again contacted O'Brien and stated that he wished to file an application for transfer to the job of stationman. O'Brien refused to acknowledge Nelson's request for a transfer, stating that there was a six year wait for the position of stationman.

 On at least three occasions between October 6, 1974 and November 6, 1974, the date of his discharge, Nelson orally requested Union officials to initiate a grievance hearing relating to his imminent discharge and SEPTA's refusal to transfer him. Joseph Bepko, a Union official, told Nelson that the Union would not file a grievance on his behalf, and said that neither the Union nor Nelson could contest the finding of the SEPTA physician that Nelson was not permanently disabled from performing the job of bus driver.

 Nelson was terminated by SEPTA on November 6, 1974, and notice to that effect was mailed to him on the same day. The termination letter made no mention of any rights Nelson might have to appeal or contest his dismissal.

 On November 12, 1974, following Nelson's discharge, the Assistant Director of Industrial Relations for SEPTA, W. H. Crocker, wrote to Ned LeDonne, President of Local 234, regarding Nelson, and stated:

"In response to Mr. Bebco of your staff requesting the Authority to accept a grievance on behalf of operator P. Nelson.
As you and Mr. Bebco know that [sic] in the labor agreement between the Authority and Transport Workers Union, Local 234, Article V, Section 502, Sick Leave, Paragraph (j) states, 'Any employe whose absence due to illness exceed [sic] the amount of sick leave to which he is entitled will be automatically dropped from Authority service.' Further, the Authority has never made an exception to this rule, and in view of Mr. Nelson's consistently substandard attendance record, we would never consider an exception be made in his case."

 Throughout the time Nelson was a SEPTA employee, the Union, Local 234, represented him and was the exclusive bargaining unit for employees of Nelson's classification. See 43 P.S. § 1101.606. As a condition of employment Nelson was required to become a member of the Union. See the SEPTA-Local 234, AFL-CIO Collective Bargaining Agreement (hereinafter the Agreement) § 12.

 The Agreement in force at the time Nelson was discharged provided a grievance and arbitration mechanism whereby a grievance was processed through three stages, and if then still unresolved, could be taken to arbitration. See Agreement §§ 201-203. At the first stage, the grievance is presented to the employee's foreman or superintendent. An employee charged with an infraction of SEPTA's rules or regulations, improper conduct, or dereliction of duty must be notified of the charge and have an interview with his Superintendent or Foreman before he is barred from reporting to work, except for certain serious rule infractions, for example, being under the influence of drugs.

 If the foreman or superintendent renders an unfavorable decision, the grievance may be taken to the Department Head. The grievance must be in writing on the appropriate forms. The Department Head may at his discretion hold a hearing. In any case where the employee is discharged, the second step of the procedure is of right. If the Department Head's decision, which must also be in writing, is unfavorable, the third stage of grievance machinery may be engaged. At the third stage of the procedure the grievance is presented to SEPTA's "third stage representative" for discussion at a weekly meeting.

 If the grievance is still not satisfactorily resolved following the third stage of the procedure, the grievance may be taken to arbitration, the arbitration board consisting of three members; one appointed by the Union, one by SEPTA, and the third designated according to the rules of the American Arbitration Association. The decision of the arbitration board is binding on both the Union and SEPTA.

 Either the aggrieved employee or the Union may process the grievance through the first three stages. Only the Union, however, may take a grievance to arbitration. Agreement §§ 201(k), 202(a). In the present case, ...

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