On or about November 15, 1991, Claimant exercised his seniority rights to the position of Operator-Leverman at Carrier's Bridgeport Tower. Since he was not at that time qualified to assume the duties of the Operator- Leverman position on November 15, 1991, he commenced training on the position and continued such training until January 5, 1992.
By letter of January 7, 1992, Claimant was notified to appear for an Investigation "to determine whether or not you exerted full and proper efforts to become qualified as an Operator-Leverman in the Bridgeport Tower, during the period from November 15, 1991, to January 5, 1992." On January 16, 1992, Claimant was informed that he was being dismissed from Carrier's service because he had been found in violation of Superintendent's Bulletin Notice No. 1, paragraph 7, issued January 1, 1992.
Relevant to this case are Rule 10 (b) of the Agreement between the Parties and the Superintendent's Bulletin Notice No. 1, par. 7:
It is unrefuted on the record the Carrier requested from the Organization two extensions of the contractually allowed 30-days to facilitate Claimant's attempt to qualify for the position. It is also unrefuted that the Carrier did not raise the issue of the Superintendent's Bulletin Notice No. 1 (par.7) until well into the Investigation. Notwithstanding, the Carrier has not proven negligence or malfeasance on Claimant's part in failing to qualify for the position of Operator-Leverman beyond conjectural speculation into what his alleged motives for intentionally failing might have been. The Board finds that the Carrier has not met its burden of persuasion in this case. Form 1 Award No. 30250
With respect to remedy, the Carrier maintains that Claimant had an obligation to mitigate his damages when offered the opportunity to do so. It notes that it offered him reinstatement in a letter dated March 26, 1992, but Claimant declined that offer. The organization correctly points out, however, that the letter stipulated that the offer was for a "leniency reinstatement," which, by implication, suggests that Claimant was guilty as charged, but was being reinstated despite his alleged Rule violation. Under the circumstances, Claimant's unwillingness to accept Carrier's offer was not unreasonable.
Subsequently, however, the Carrier revised its offer to Claimant in a letter to him and the Organization dated April 28, 1992. In that letter, no mention was made of "leniency." Rather, Carrier stated: "his seniority will be unimpaired, upon his return his April 1, 1981, protection will be restored and he will maintain the right to pursue his claim for time lost resulting from his dismissal." The letter further provided that he should report for work to Homewood, Illinois, "within fourteen days from the date of this letter." Claimant declined to report as instructed, and the record is devoid of any persuasive rationale for that refusal.
Accordingly, the Board finds that Claimant failed to mitigate his damages when given a bona fide opportunity to do so. Thus, while we find that Claimant should be reinstated with seniority and other rights unimpaired, he should be compensated for time lost only between January 17, and May 12, 1992.