The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant, hired as an Apprentice Machinist on September 6, 1994, resigned on June 30, 1998. The Claimant Chairman thereafter sought reinstatement to service, which was granted by the Carrier under specific conditions. The August 3, 1998 letter granting conditional reinstatement included the following:
On August 4, 1998, the Claimant signed a "Waiver/Agreement Letter," which included the following:
This Waiver/Agreement Letter was also signed as a "witness" by the Claimant's Union Representative. This signature does not necessarily make the Organization a party to this Agreement. However, it emphatically provided the Organization with knowledge of the letter's contents and, absent any claim to the contrary, an acceptance Form 1 Award No. 13653
evidence provided was the Claimant's "Absence Information" from January 8, 1999 through July 6, 1999.
Since there was no explication of how this record specifically relates to alleged "rule violation," the Board will not attempt to infer such meaning, except to note that the record apparently shows: absence without authority, January 29, 1999; "absentsick," February 13, March 4, April 28, May 17, June 2, 3, 19, 30, July 1 and 19, 1999.
As to the Carrier's conformance with the "Progressive Counseling and Disciplinary Procedure" in its own Attendance Policy, the record shows only Notices to the Claimant advising him of being at Steps 1, 2, and 4 based respectively on absences of June 2,19 and July 9, as well as a Notice of being charged for two "occurrences" for absences on July 2 and 6.
The extraordinary nature of these Notices is that they are all dated July 16,1999 - three days prior to the dismissal letter, quoted above. In other words, none of these Notices could possibly have been used in "progressive counseling" of the Claimant.
As one of its principal arguments, the Union argues that the Claimant was denied his "contractual right" to a Rule 32 Investigative Hearing. The Board fully dismisses this argument. The terms under which the Carrier permitted the Claimant to return to service, specifically and with notice to the Organization, waived the Rule 32 rights.
This, however, does not mean the Carrier had preserved full discretionary authority over the Claimant's employment status. Four of the Carrier's five conditions were related to drug/alcohol matters; no suggestion of non-compliance on these is indicated. The fifth condition makes "violation of any Company rule" sufficient to dismiss the Claimant from service without a disciplinary Hearing.
The Board finds, nevertheless, that this permits the Organization to challenge the statement of "rule violation," leaving the Carrier with the burden of proof to show it occurred.
Did the Claimant "violate" the Attendance Policy? Except for the first numbered paragraph, the Attendance Policy is a procedure administered by the Carrier when Form 1 Award No. 13653
employees are absent or tardy; it describes the remedial steps and subsequent penalties for absence. It is, however, not a "rule" which must not be violated.
The Policy's first numbered paragraph is closely similar to Rule 1.15 (as it existed prior to May 1, 1999). It does say, "Employees . . . must not absent themselves from duty . . . without proper authority." The Carrier did not indicate that the Claimant's sick days (while possibly considered excessive in another context) were taken "without proper authority." Only one day is shown (apparently) as absence without "proper authority," January 29,1999. If the Carrier were attempting to base its dismissal action on this, such would be ineffective six months later.
Rule 1.15 has a curious twist. Looking at its content prior to the May 1, 1999 addition, it simply cannot be read as any cautionary Rule against excessive absence or unreported absence. Its attention is directed to employee conduct upon reporting for duty and while on duty. The Claimant is not accused of any violation in this regard. The limited meaning of the Rule as previously written is supported by the sentence added on May 1, 1999, which does indeed concern absence, when it states as follows:
This additional sentence, it must first be noted, did not take effect until nine months after the Claimant signed the Waiver letter and less than three months before: the dismissal action. Since the Carrier makes no case for "continued failure . . . to, protect," the Board will not attempt to parse its meaning. Further, questions arise: Was the Claimant (or were employees generally) made aware of the May 1, 1999 Rule: addition? How does it relate to the penalties, much milder than dismissal, in the Attendance Policy, along with the directed counseling of employees?
The Carrier's Submission refers to the Claimant being absent "eighteen (18) times between January 8, 1999 and July 10, 1999." A review of the absence record appears to show 11 days; if there were more, such was not explained. The Carrier says the Claimant had an "atrocious attendance record." The Board has no reason to find otherwise, but excessive absence was not the stated cause of the Claimant's dismissal. Once again, the reason given was "violation" of the Attendance Policy (which measure; Form 1 Award No. 13653
and assesses absences) and Rule 1.15 (which, prior to May 1, 1999 did not concern absence, and after May 1, 1999 provided untested additional language during the remaining two months of the Claimant's employment).
One further aspect requires discussion: The Carrier looks to other on-property Awards to support its dismissal action without any impairment or the use of a Rule 32 Investigation. The cited Awards are different in nature. Public Law Board No. 4746, Award 115 (same parties as here) concerned a waiver of Investigation, acceptance of dismissal as a proper penalty, conditional return to duty, acknowledged failure to meet one of the conditions. The Award found the Carrier "privileged to return [the employee] to the status of a dismissed employee."
Public Law Board No. 5704, Award 4 (UP-UTU) concerned an employee returned to work on a "probationary basis," with the condition, among others, that the employee could be terminated if he becomes "involved in any rule infraction or display[s] any conducted which in the Carrier's opinion would normally warrant permanent dismissal." (Emphasis added)
In contrast to these temporarily suspended dismissals, here the Claimant was directed to conform with drug/alcohol conditions (not at issue here) and avoidance of Rule violation. In its dismissal action, the Carrier cited only Rule 1.15 and the Attendance Policy. As discussed above, the Board finds insufficient the Carrier's assertion that the Claimant specifically violated this Rule or this Policy.
In determining a remedy, however, there is ample reason for caution. After resigning, the Claimant was able to return to service solely because of the good will and voluntary action of the Carrier. When the Claimant did return and, logically, he could have been held to a near-perfect attendance standard as a condition, he instead was more generously permitted to take care of any possible drug/alcohol situation and work within the Rules. In return, he developed a poor attendance pattern.
As a result, support for the Organization's contractual position in this claim should not involve any retroactive benefit for the Claimant. The Award will, therefore, direct that the Claimant be promptly offered reinstatement with seniority unimpaired but without back pay or retroactive benefits; that the first four conditions of the Carrier's August 3, 1998 letter to the Claimant continue to apply, with the cited threeyear period to commence upon reinstatement; and that the Claimant be placed initially Form 1 Award No. 13653
on Step 3 of the Attendance Policy. If these conditions are not acceptable to the Organization and the Claimant, then the dismissal action will stand, and the claim will be denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.