Form I NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13832
Docket No. 13724
05-2-03-2-67
The Second Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Canadian Pacific Railway Company (Former Soo Line
(Railroad
STATEMENT OF CLAIM:
°°I. That the Canadian Pacific Railway Company [Soo Line
(CP/Soo)], violated the current Agreement, effective September
1, 1949, as amended in 1982, in particular Rule 35, when they
wrongfully dismissed Mechanical Department Electrician Eric
D. Hisle on February 21, 2003.
2. That the CP/Soo failed to provide Mechanical Department
Electrician Eric D. Hisle with a fair and impartial investigation
as mandated under Rule 35.
3. That accordingly, the CP/Soo be ordered to promptly reinstate
Mechanical Department Electrician Eric D. Hisle to service
with all seniority rights unimpaired and to make him whole for
all wages, rights and benefits lost including, but not limited to:
vacation, insurance, hospitalization and railroad retirement
rights resulting from his removal from Carrier service.
Further, that any an all reference to this dismissal, including all
correspondence, be removed from Mr. Eric D. Hisle's personal
record."
FINDINGS:
The Second Division off the Adjustment Board, upon the whole record and all
the evidence, finds that:
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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.
Parties to said dispute were given due notice of hearing thereon.
The Claimant has been employed by the Carrier since 1988.
By letter dated January 7, 2003, the Carrier charged the Claimant with
continuing excessive absenteeism on December 15, 2002 and January 5, 2003 as well
as failure to complete full tours of duty on November 25 and December 23, 2002.
Investigation on that charge was held on January 15, 2003.
By letter dated January 14, 2003, the Carrier charged the Claimant with
continuing excessive absenteeism on January 11, 2003 and failure to complete a full
tour of duty on January 12, 2003. Investigation on that charge was held on January
31, 2003.
By letter dated February 21, 2003, the Carrier dismissed the Claimant for
being absent on the dates charged and for failing to complete his full tours of duty
as charged.
The Claimant's prior disciplinary record shows the following:
"7/31/2001 Informal Coaching Absenteeism
4/19/2002 Informal Coaching Absenteeism
6/19/2002 PAP Absenteeism
7/17/2002 5-day suspension Absenteeism
8/30/2002 PAP Behavior
(swearing/arguing with
fellow employee)
11/06/2002 10-day suspension Absenteeism"
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Substantial evidence supports the Carrier's determination that the Claimant
was excessively absent and did not complete his tours of duty as charged in the
January, 2003 letters. Indeed, those absences are not disputed. Misconduct has
been shown.
The next question is whether the Carrier's determination that the Claimant
should be dismissed was arbitrary. We find it was not.
Our inquiry here is limited to only determining whether the Carrier was
arbitrary in the assessment of the amount of discipline. The Claimant has been
progressively disciplined and, based upon his absence record, we cannot find under
this limited standard of review that an arbitrary disciplinary determination has
been made by the Carrier. While the Claimant has gone through some serious
personal problems and is attempting to get his personal life in order, nevertheless,
he has been repeatedly absent and the prior disciplinary actions have not gotten the
message through to him to cause him to correct his conduct.
But the outcome of this case really comes down to the Claimant's admissions
that he engaged in the charged misconduct and his request for leniency.
At the first hearing the Claimant stated [Q 143]:
"A . ... [All] I ask is that I hope that CP Rail can forgive me for my
sins against them. I am committed to good attendance; and, you
know, all I want is mercy from the people that determine what is
going to happen to me after this. I just want a chance .
... I just ask that the CP Rail allows me to atone for my inequities
against them and my attendance problem for the year ...
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... [W]hoever decides what my fate might be with the company to
please have a little empathy and some compassion when you review
what I'm all about and the fact that I had a rough year, and things
get better."
At the second hearing the Claimant stated [Q 108]:
"A . ... I just hope that the CP Rail company can forgive me for, as I
stated before, the fact that I, for lack of a better word, sinned against
them in my attendance. I just hope, again, that the company realizes
that, and the people in charge of deciding what my future might be,
realize that I am a good and productive employee who admits that I
have been dealing with some personal things, but also working hard
to overcome these issues, working hard with EAP and therapy and
am committed knowing that I've hit a very low point in my life ...."
And, at the second hearing the Organization summed it up best [id.]:
"... We hope that his sincere regrets and his seeking help will be
given great consideration. We are asking for leniency."
Notwithstanding the pleas of the Claimant and the Organization, the Carrier
did not grant the Claimant leniency. Perhaps the Carrier should have taken the
Claimant's personal situation more into account - particularly given his length of
service. Perhaps the Carrier should have reinstated the Claimant on a last chance
basis and closely monitored his attendance and set specific limits on absences which,
if passed, would result in immediate dismissal. But, whether the Carrier should
have taken those steps is, in the end, beyond our authority to decide. Given that the
Carrier did not grant the Claimant's request for leniency, this Board simply has no
power to do so. See Second Division Award 13345:
"The Board has long held that reinstatement of an employee based
on leniency is within the sole discretion of the Carrier, and it will not
substitute its judgment concerning the appropriate penalty where
the discipline imposed is not arbitrary, capricious or excessive. See
Second Division Awards 13161, 12573, 7267; Third Division Awards
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31937, 31935, 31932, 25705. Because the Board is not empowered to
grant leniency, we have no alternative but to deny the claim."
See also, Third Division Award 34206:
"The Organization is seeking leniency from this Board. It has long
been held that the Board does not have the authority to grant
leniency - only the Carrier can do that. The standards that guide
us in this case are that substantial evidence supports the Carrier's
determination that the Claimant engaged in misconduct and the
imposition of dismissal was not arbitrary. The Carrier has made
those showings."
Under the circumstances, we simply have no authority to do what the
Organization asks on the Claimant's behalf.
The Organization's other arguments do not change the result. The claim
shall be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this Ist day of April 2005.