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decided: January 26, 1977.


Appeal from an award of the American Arbitration Association in case of In the Matter of Arbitration: Southeastern Pennsylvania Transportation Authority, Red Arrow Division and United Transportation Union, Local 1594, AAA Case No. 14 30 1482 75.


R. Thomas McLaughlin, with him Deasey, Scanlan & Bender, Ltd., for appellant.

Richard S. Meyer, with him John F. Smith, III, and Dilworth, Paxson, Kalish & Levy, for appellee.

Judges Kramer, Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 28 Pa. Commw. Page 324]

The United Transportation Union, Local 1594 (Union), pursuant to Pa. R.J.A. No. 2101, has appealed from an award of arbitration made in a labor dispute between the Union and Southeastern Pennsylvania Transportation Authority (SEPTA) over the propriety of the discharge by SEPTA of one Anthony Ruger, a bus driver, for alleged substandard work.

The collective bargaining agreement provided a grievance procedure, the last step of which was "final and binding" arbitrators by a three person Board of Arbitrators, one each selected by the parties and the third selected under the rules of the American Arbitration Association. The arbitrators conducted extensive hearings, at the conclusion of which a majority decided that Mr. Ruger's discharge was unwarranted and that he should be reinstated but without reimbursement of any loss of earnings or other financial losses during the period between the date of the discharge, November 20, 1975, and of the award, May 14, 1976. The dissenting member of the Board, the Union's designee, believed that full back pay and other benefits should have been awarded.

The arbitration award written for the majority of the Board records apparent incidents of bad behavior on the part of Mr. Ruger memorialized by complaints of passengers or SEPTA supervisors, warnings issued

[ 28 Pa. Commw. Page 325]

    or suspensions imposed on or about the following dates: April 28, 1973, May 4, 1973, May 16, 1973, June 11, 1973, September 14, 1973, January 9, 1974, June 11, 1974, June 16, 1974, July 19, 1974, July 24, 1974, September 24, 1974, September 25, 1974, September 30, 1974, October 2, 1974, October 3, 1974, October 7, 1974, November 26, 1974, December 5, 1974, December 10, 1974, December 31, 1974, February 10, 1975, March 5, 1975, March 13, 1975, April 16, 1975, May 6, 1975, September 18, 1975, September 30, 1975, and November 7, 1975. Some of these complaints, warnings or suspensions related to the manner of Mr. Ruger's operation of buses; some were based on his asserted mistreatment of senior citizens entitled to ride free; some related to his being out of uniform and at least one to his smoking while operating a SEPTA bus. The incident which triggered Mr. Ruger's discharge occurred on November 1, 1975, when Mr. Ruger refused a request that he stop smoking while operating a bus chartered by the Delaware County Community College to transport its soccer team. The request was made by the team's coach. The version of this incident most favorable to Mr. Ruger is Mr. Ruger's account, to the effect that the coach asked if he would mind not smoking and that he told the coach that he would indeed mind not smoking and that he continued to do so.*fn1 The Board of Arbitrators concluded that the triggering incident warranted some disciplinary action and therefore justified its receipt into evidence of Mr. Ruger's employment record. However, the majority criticized SEPTA for "poor procedure in failing to notify [Ruger] in all cases of a complaint or charge that had

[ 28 Pa. Commw. Page 326]

    been made against him," and found some incidents where the evidence of misconduct was "rather thin," conflicting and confusing. It found on the other hand that there were some incidents prior to the triggering event in which Mr. Ruger's conduct was improper, naming in this category, according to our count, nine deficiencies, including running ahead of schedule, missing runs, refusing to take assigned work in an emergency, engaging in a confrontation with a supervisor, being out of uniform, being unshaven and refusing overtime work.

We have adopted the Federal test for review of arbitrators' awards appealed under Pa. R.J.A. No. 2101.*fn2 Teamsters Local Union No. 77 v. Pa. Turnpike Commission, 17 Pa. Commonwealth Ct. 238, 331 A.2d 588 (1975). That test is that an arbitrator's award is legitimate if it draws its essence from the Collective Bargaining Agreement*fn3 under consideration; the award takes its essence from the agreement if the arbitrators' interpretation can in any rational way be derived from the ...

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