3 CIR 270 (1977)


Special Administratrix in the |
Estate of Walter Kurtzuba, |
Plaintiff, |
223, |
Defendants. |

Appearances: For Plaintiff: Edward F. Fogarty, Jr.

For Defendant City: Thomas J. Young

For Defendant Local: Robert E. O'Connor, Jr.

Before: Judges DeBacker, Green, and Rudolph.


The plaintiff, Walter Kurtzuba, was employed by the defendant Transit Authority as a bus driver from sometime in 1970 until approximately May 1, 1975. The plaintiff was also a member of the defendant local, which had negotiated and executed a collective bargaining agreement with the authority.

By his original Petition, the plaintiff alleges that he was wrongfully discharged and further alleges that the defendant local inadequately represented him in processing his grievance arising out of the discharge.

During the pendency of the action, the plaintiff died and the action has been revived, over objection of the authority, in the name of his widow and administratrix. In light of the decision hereafter reached, we do not need to rule upon the propriety of the revivor or the authority's objections thereto.

Briefly stated, the facts are that the plaintiff reported for work on April 30, 1975 at approximately 6:00 A.M. He drove his morning run and then reported to the dispatcher's office that he was ill and did not return for his afternoon shift, which was scheduled to begin at 3:05 P.M. His widow testifies that he came home at approximately noon on the day in question and remained at home for some 2 1/2 to 3 hours. He then left the home and returned late in the afternoon. Mrs. Kurtzuba learned through conversations between Kurtzuba and his son the following day that the two of them, Kurtzuba and the son, had been at the Ak-Sar-Ben race track on the afternoon in question.

Supervisory employees of the authority learned that Kurtzuba was at the race track at 2:33 P.M. on April 30. This information came to their attention on May 1 and on the same date, the acting manager informed Kurtzuba by letter that he was discharged, effective May 2, 1975. Kurtzuba and the union pursued the grievance process which culminated in a sustaining of the order of discharge. Kurtzuba requested arbitration under Article XXIV of the collective bargaining agreement. The authority refused to arbitrate and this action was commenced.

The plaintiff claims a violation of Article II of the agreement; however, that article is merely a statement of the objects of the agreement in generalities and does not establish any particularized obligations on either party.

The plaintiff alleges that the authority breached Article XXIV, the arbitration article of the agreement. This charge is based upon the authority's refusal to submit to arbitration. This claim must fail on the basis of Article V, Section 2 (D) of the agreement. Under the terms of that section, only the union or the authority is granted the right to appeal to arbitration. Article V, Section 2 (D) says in part: "---with the understanding that only the Union or the Authority is the moving party to arbitration." The request for arbitration in this instance was made by letter of the attorney for the plaintiff and not by the union. The president of the local testified that he had never taken a case to arbitration under the terms of this agreement. The president had requested the NLRB to accept jurisdiction of this case but that request was withdrawn at the request of the plaintiff.

Plaintiff further claims that the discharge was excessive under the circumstances. The record indicates, however, that the authority had in two previous instances, in approximately 1 1/2 years before the one giving rise to this matter, discharged other employees for similar conduct. Kurtzuba, the day before the incident in question, had requested time off to go to the races and had been refused. In the course of that conversation, he had offered the dispatcher the opportunity of having a bet placed. The authority has consistently maintained the position that Kurtzuba was fired for dishonesty; that is, reporting sick and then going to the race track at a time when he should have been working. Nothing in the evidence demonstrates that position to be anything other than what the authority claims it to be.

On the basis of the evidence, we find that the authority properly exercised its reserved powers under the collective bargaining agreement; that the plaintiff has failed to sustain his burden to show that the discharge was wrongful; that the plaintiff has not been prejudiced by the refusal to arbitrate in that the question of the propriety of the discharge has been fully litigated before this Court, and that the action should be dismissed.

IT IS, THEREFORE, ORDERED that this action is dismissed.