Form 1 NATIONAL RAILRQAD ADJUSTMENT BOARD Award No.
8698
SECOND DIVISICN Docket No. 8754
2-BNI-CM-181
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That Carman D. A. Wilson, Havelock Shop, Lincoln, Nebraska, was unjustly
treated and the provisions of the current Agreement were violated when
he was not allowed to work his assigned position on January 15, 1979.
Such action violated Rule 35(a) of the current Agreement.
2. That accordingly, the Burlington Northern, Inc. be ordered to compensate
the above named carman eight
(8)
hours for January 15, 1979.
Findings
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The claimant is employed as a Welder at the Carrier's Havelock Shop. His
assigned hours of service at the time of this claim were 7:00 a.m. through 3:00 P.m.,
Monday through Friday. Saturday and Sunday were rest days. On Friday morning,
January 12, 1979, the Claimant called his supervisor and reported that he would
be late for work because he was experiencing car trouble. When the Claimant
called in, the Carrier contends that he was effectively told that 1) if he would
be unable to get to work at all that day (January 12) he should call back and so
advise the supervisor and 2) that he had to call back on the 12th and advise if
he would report for work on Monday the 15th of January per the requirements of
Rule
16
(f) which reads:
"An employee returning to work shall report during the working
hours of his regular shift the day previous to his return."
The organization disputes whether either instruction was given to the Claimant.
They contend the Claimant advised the supervisor that if he got the car fixed he
would be in and if he didn't wouldn't. This notification was all that was
required of the Claimant by the contract, specifically Rule
16 (e).
Form 1 Award No.
8698
Page 2 Docket No. 8754
2-BNI-CM-'81
It is undisputed, however, that the Claimant did not call back or report for
work during his shift on the 12th. It is further undisputed that when the
Claimant reported for work on Monday, January 15th, he was not allowed to work and
received no pay for that day.
It is the time lost on that day which is the subject of this dispute. The
organization fundamentally argues that the denial of work on the 15th constituted
a disciplinary action which was not preceeded by a hearing as required by Rule
35(a),
which states:
"An employee in service more than sixty
(60)
days will not
be disciplined or dismissed until after a fair and impartial
investigation has been held. Such investigation shall be
set promptly to be held not later than thirty (30) days from
the date of the occurrence, except that personal conduct
cases will be subject to the thirty (30) day limit from the
date information is obtained by an officer of the Carrier
and except as provided in (b) hereof."
The carrier fundamentally argues that the Claimant effectively forfeited his
right to work on the 15th. The Carrier contends that an employee, after an absence,
is not entitled to work, unless he has notified the Carrier that he will return
to work during the hours of his shift the day previous to his return. This
argument has its foundation in Rule
16
'(f) cited previously.
The arguments of the parties deserve to be examined in more detail. The
organization's most pertinent argument is their contention that the fact Mr. Wilson
was sent home on the 15th had nothing to do with his alleged failure to
comply
with Rule 16 (f). The Carrier's
16
(f) defense was an afterthought, they contend.
The Carrier's real motivation in sending the Claimant home on Monday was
explained in the first and second declinations. They read these declinations as
indicating he was sent home because he failed to
comply
with instructions to call
back regarding his attendance for the remainder of Friday, the 12th. Nothing was
indicated in these letters that the Claimant was sent home on the 15th for anything
but his failure to call back and advise if he could work the 12th. The argument
implies the letters do not even remotely suggest that he was sent home because he
failed to notify the carrier regarding his attendance on the 15th or in other
words for his alleged failure to comply with
16
(f). The
16
(f) defense wasn't
even raised until the final declination. Further the organization asserts that,
the contention in the carrier's final declination that the supervisor "specifically
reminded Claimant of the requirements of Rule
16
(f) of the Agreement, advising
Claimant that if he found he could not report for work at all that day he should
again call in to notify the Carrier so that he could return to work on his next
workday," is unsupported. There are no written statements in the record from the
foreman, for instance. No weight, they suggest, should be given to unsupported
allegations. They conclude this line of argument by stating that the Carrier's
behavior constituted a disciplinary action because their motivation in sending the
Claimant home on the 15th was a result of having failed to comply with instructions
to call back on the 12th regarding his attendance for the remainder of that day.
An employee's failure to
comply
with instructions is normally a disciplinary
matter. The Carrier's motivation at the time was not based on the enforcement of
Rule
16
(f). As a result of being deprived of one day's pay without a hearing, Rule:
35(a)
F orm 1 Award No. 8698
Page 3 Docket No. 8754
2-BNI-CM-'81
was violated, they argue. Further, even if the Carrier had sent Wilson home in an
attempt to enforce
16
(f), they vigorously argue, doesn't apply to absences of one
day.
The Carrier's argument is relatively simple and straightforward. Rule 16 (f)
is clear and unambiguous according to the Carrier. It applies to any absence
including one-day absences such as this. The intent of the parties in this regard
is clear by virtue of the language and because other agreements with similar
provisions make a distinction between one-day absences and others. If
16
(f)
were not intended to apply to one-day absences a similar exception would have been
written into this agreement. The facts as viewed in context of this interpretation
of 16 (f) would support the idea that Mr. Wilson was properly held from service.
Their actions were not disciplinary but a result of the application of the express
provisions of the agreement.
The task of the Board, as we see it, is to determine first the Carrier's
intent and motivation in withholding the Claimant from service on Monday, January
15. If he was sent home only because he failed to call back on the 12th regarding
his attendance on that date then the action must necessarily be considered
disciplinary in nature. The claim in this event would be sustained because Rule
35 (a) prohibits such precipitous action without the benefit of a hearing. If,
on the other hand, the Carrier's reason for preventing Mr. Wilson from working the
15th was because he failed to call in the 12th relative to work on the 15th,
thereby failing to comply with 16 (f), the Board must interpret 16 (f). An
inquiry would be necessary to determine if 16 (f) applied to absences of one day
such as the one in the instant case.
In considering the competing positions, it is the conclusion of the Board that
the Organization's position, that the Carrier's motivation in withholding Mr.
Wilson from work was disciplinary rather than out of deference to Rule 16 (f),
is the more reasonable conclusion upon thorough reading of the record. In arriving
at this conclusion we give,significant weight to the organization's argument that
the Carrier's 16 (f) defense was an afterthought to the Carrier's initial action,
having been argued for the first time in the final declination by the Carrier's
highest officer designated to handle claims. When the handling of the claim in
the first two steps is reviewed there is indeed no indication that non-compliance
with 16 (f) was the reason for withholding the Claimant from service on January 1!i.
Rule 16 (f) wasn't even tacitly referred to, nor was anything mentioned to the
slightest degree that would indicate the Claimant was withheld because he didn't
call back the 12th relative to his attendance on the 15th. The initial claim on
the property as submitted by the local chairman indicated the following:
"Mr. Wilson reported for work on his assigned position on
January 15, 1979, and was sent home for not calling back
in telling the Carrier he would not be in the rest of the
day.
Emphasis added
In the Carrier's reply by the Shop Superintendent, no exception was taken to
the above quoted statement. On the contrary, it emphasized and cited, as the
primary and sole reason for sending Mr. Wilson home, his failure to call regarding;
his attendance on the 12th. Nothing was mentioned about Rule 16 (f) or calling
back on the 12th regarding the 15th. The letter is quoted below:
Form 1 Award No.
8698
Page 4 Docket No. 8754
2-BNI-CM-
1
81
"Dear Sir:
This will acknowledge your letter of January 21, 1979, pre
senting claim on behalf of Carman D. A. Wilson, for eight
hours pay at pro-rata rate of his position for January 15,
1979, account he was sent home on that date
because he failed
to call in and advise he would not make it in.
Mr. Wilson did call and advise he would be late due to his
car not starting,
but he was advised to call back and further
advise the General Foreman if he would not be in at all and
this he failed to do.
Surely, had Mr. Wilson been truly concerned about his job
at the shops, he would have made arrangements to get his car
repaired and then utilized public transportation which is
readily accessible, to get to work.
Therefore, since Mr. Wilson did not call back and advise he
would not be in at all on Jan
uar 12, 1979 he was properly
sent home on January 15, 1979, and your claim for
8
hours
pay is without merit and is respectfully declined."
(Emphasis added)
The Board also notes the second step denial by the Assistant Vice President -
Mechanical. This denial is also lacking in reference to
16
(f) or reporting for
the 15th. It reads as follows:
"Dear Sir:
Please refer to your letter of March 21, 1979, concerning
the claim of Carman Welder D. A. Wilson of the Havelock Shop.
It is true that Mr. Wilson did call in to indicate that he
had car trouble on January 12, 1979, but he also indicated
that he would only be late and would still report
in
for duty
on January 12, 1979. Mr. Wilson did not report in for duty
on January 12, 1979.
Mr. Wilson was also advised that if he found it was impossible
for him to make it in to work January 12, 1979, he
should
call the office and so inform them. Mr.
Wilson saw
fit to
ignore this reasonable request altogether.
Mr. Wilson's claim for eight hours pay is without basis and,
therefore, is declined in its entirety." (Emphasis added)
The Board also finds significant the lack of evidence to support the Carrier's
11th hour contention that the Claimant was specifically reminded of the requirements of
16
(f). Had the Carrier been able to produce a statement from the
supervisor who talked to Mr. Wilson on the 12th that indicated that he had in
F orm 1
Page 5
Award No.
8698
Docket No. 8754
2-BNI-CM-181
fact reminded Wilson to call back relative to his attendance on Monday, we would
not have given such decisive weight to the Organization's arguments.
The record contains more evidence to support the idea that Mr. Wilson was sent
home on Monday (the 15th) because he failed to comply with instructions to call
back relative to his attendance on the 12th than because of his alleged failure
to comply with Rule
16
(f). As such, it is not necessary to interpret Rule
16
(f)
as whether it applies to absences of one day.
In summary, it is concluded that the withholding of Mr. Wilson was disciplinary
in nature, as a result of failing to comply with instructions, and not as a result
of the execution of Rule
16
(f). Rule 35 (a) is clear. Discipline must be
preceeded by a fair and impartial hearing. Since one was not granted the claim
will be sustained.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
r·
~semarie
Dated at Chicago, Illinois, this 29th day of April,
1981.
Administrative Assistant