Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32047
Docket No. MW-32063
97-3-94-3-442
The Third Division consisted
of
the regular members and in addition Referee
Charles J. Chamberlain when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly
terminated the seniority
of
Mr. M. R. Patterson on January 18,
1993 for allegedly being absent on five (5) consecutive days,
January 4, 5, 6, 7 and 8, 1993, without proper authority (System
File D-196/930618).
(2) The claim* as presented by Vice Chairman J. V. Larsen on March
26, 1993 to Superintendent J. L. Riney shall be allowed as presented
because said claim was not disallowed by Superintendent J. L.
Riney in accordance with Rule 49(a).
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, the Claimant shall be reinstated to the Carrier's service with
seniority and all other rights unimpaired, his record shall be cleared
of
the charges leveled against him and he shall be compensated for
all wage loss suffered beginning January 18, 1993 and continuing
until he is returned to service.
*The initial letter
of
claim will be reproduced within
our initial submission."
Form 1 Award No. 32047
Page 2 Docket No. MW-32063
97-3-94-3-442
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
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 in this dispute, Mr. M. R. Patterson held seniority as a Truck
Driver on the Oregon Division Track Subdepartment Roster. The Claimant was
assigned as Truck Driver on Gang 6619 under the direct supervision
of
Foreman D.
Johnson. The Claimant was first employed by the Carrier on November 3, 1975.
The issue that gave rise to this dispute was the alleged absence
of
the Claimant
from duty without proper authority for five consecutive working days between January
4 and 8, 1993, and his subsequent dismissal by the Carrier by letter dated January I8.
1993. which read as follows:
"Dear Mr. Patterson
This is to advise you that the company's records indicate you have
been absent from your work assignment without proper authority for the
following five (5) consecutive workdays the 4th, 5th, 6th, 7th, and 8th in
January of 1993.
Rule 48-K of the Agreement between the Brotherhood
of
Maintenance of Way employes and the Union Pacific Railroad Company,
reads as follows:
'Employes absenting themselves from their
assignments for five (5) consecutive working days without
Form 1 Award No. 32047
Page 3 Docket No. MW-32063
97-3-94-3-442
proper authority shall be considered as voluntarily forfeiting
their seniority rights and employment relationship, unless
justifiable reason is shown as to why proper authority was
not obtained.'
Therefore in absenting your assignment without proper authority
on the dates listed above, you are now considered as having voluntarily
forfeited your employment with the Union Pacific Railroad Company.
You should quickly arrange to return all company property now in
your possession. Failure to do so will delay the processing of any wages
due you.
S. J. White Date: 1/18/93
Track Supervisor"
Subsequently on February 2, 1993, the Organization Representative Mr. Joseph
V. Larsen wrote Superintendent J. L. Riney and requested a conference to discuss the
dismissal and attached an account of the Claimant's activities on the dates involved.
The request for a conference was declined by Superintendent Riney by letter
dated March 13, 1993.
On March 26, 1993, the Organization submitted a claim to Superintendent Riney
in behalf of the Claimant. The letter read as follows:
"Dear Sir:
We submit to you herewith a claim in behalf of Oregon Division
Track Subdepartment Truck Driver M. R. Patterson SSN. 544-74-0355
because the Carrier violated the Agreement specifically, but not restricted
to Agreement Rules 48, 48(a), 48(k) Section 4(a) and (b) from Appendix
`A' (Nonoperating (MofW) National Vacation Agreements), the 12/17/41
Agreement and past practice when on January 18, 1993, it removed
Claimant Patterson from service without cause and without a hearing.
Form 1 Award No. 32047
Page 4 Docket No. MW-32063
97-3-94-3-442
By administrative message No. 007 from LATA H#21172, dated
01/18/93, Claimant Patterson was notified by Track Supervisor S. J. White
that he was removed from service according to the provisions
of
Agreement Rule 48(k), for allegedly failing to gain authority to be absent
on `FIVE (5) CONSECUTIVE WORKDAYS THE 4TH, 5TH, 6TH, 7TH
AND 8TH IN JANUARY OF 1993.' (quote from Supervisor White's
01/18/93 message)
Telephone calls were made in order to resolve the matter, then a.
request for a conference was made by letter dated February 2, 1993. The
request for conference was denied by your letter dated March 13, 1993, file
B-464. Because Mr. Patterson was and is unjustly withheld from service
and is now being denied due process this claim is made for all wages lost
beginning on January 18, 1993.
Enclosed is a copy
of
Mr. Patterson's account
of
the dates involved
and how he was left with the understanding that he had gained authority
to be absent on the dates in question. Please notice Mr. Patterson's
account
of
his conversations with Track Supervisor White and Manager
Track Maintenance Ray Oneida on January 4, 1993, it was clear to Mr.
Patterson that be was granted a personal leave day on January 4, 1993,
and would be allowed additional vacation days in order to get snow tires
and chains. As he had authority to take a personal leave day on January
4, 1993, and additional vacation days he was not absent without authority,
therefore Mr. White's administrative message No. 007 from LATA
H#21172, dated 01/18/93, must be rescinded.
We take the position that Mr. Patterson did have proper authority
to take his vacation based on Section 4(a) and (b) from Appendix `A'
(Nonoperating
(MofW)
National Vacation Agreements), the 12/17/41
Agreement which states in part;
12/17/41 AGREEMENT
`5. Each employee who is entitled to vacation shall take
same at the time assigned, and, while it is intended that the
vacation date designated will be adhered to so far as
practicable, the management shall have the right to defer
Form 1 Award No. 32047
Page 5 Docket No. MW-32063
97-3-94-3-442
same provided the employes so affected is given as much
advance notice as possible; not less than ten (10) days' notice
shall be given except when emergency conditions prevent.'
So according to Section 4(a) and (b) from Appendix '.
(Nonoperating (MofW) National Vacation Agreements), the 12/17/41
Agreement would allow Mr. Patterson to take his vacation on January 5,
6, 7, and 8, 1993, which was the time assigned and Mr. White's position
that he was absent without proper authority is without support.
Mr. Patterson was denied a hearing, a conference and because he
was not allowed to face his accusers, question witnesses, participate in, nor
allowed present a defense he should be returned to service and paid for all
time unjustly withheld this is supported by the following are quotes from
Due Process in Disciplinary Hearings, by Joseph Lazar.
`The Sixth Amendment
of
the United States Constitution
provides, in part, that `the accused shall enjoy the right ... to
be confronted with witnesses against him.' The fundamental
rights
of
confrontation and cross-examination are essential to
the integrity
of
disciplinary procedures and provide basic
safeguards for all parties to the employment relationship. In
the larger context
of
industrial liberty, these rights provide
a secure foundation for other due process rights. In
disciplinary procedures, fairness and due process exclude
faceless accusations, whether the result
of
faulty memory
of
malevolent intent.
The argument for the constitutional rights
of
confrontation
and cross-examination has been underlined by the Board:
`Some
of
these reasons were in the minds
of
our ancestors
when they founded this country, and the right to personally
confront the witnesses against them was one
of
the things
they fought for. It may be said that this is not a criminal
trail, but it currently partakes
of
that character and even in
civil trails no deposition can be admitted in any court without
the opposing party having been given the right either in
Form 1 Award No.
32047
Page 6 Docket No.
NIW-32063
97-3-94-3-442
person or by council to confront the witness and cross
examine him.'
The Board insists that an accused employee must enjoy the
fundamental rights of confrontation and cross-examination
of hostile witnesses. Award No. 14987-1 states: `Claimant
and his representative were not permitted to "hear" the
testimony of, and interrogate, the one principal witness
against him. This proceeding did not vaguely approach that
"fair and impartial hearing" contemplated. . .However good
the motive of carrier and however great the provocation
presented, fundamentals of a rule so important to the
claimant and his security as an employee cannot be so lightly
by-passed, whatever the occasion otherwise demands . . . .It
is much better that a case of the most clearly desirable
discipline fail for want of proof that it rest upon such a
hearing as was here attempted.' If the claimant and his
representative had an opportunity to face and interrogate his
accuser, the witness `might have told a different story. Upon
that, we do not need to speculate. We are not required to.
Claimant had the right to rest upon the protection his
contract gave him for a fair and impartial hearing, and this
he did not get.' Award No. 13577-I similarly declares:
`The right to confront opposition witnesses and be afforded
the privilege of cross-examination is a prerequisite to the fair
and impartial hearing.'
The Board has a:pressed the conviction that while
disciplinary procedures are `not bound by the strict rules of
judicial procedure it is, never-the less, essential to observe
the fundamental requirements of due process. These include.
. .an opportunity to confront the witnesses . . (T)he
Agreement, expressing, as it does, the spirit of the law of the
land, requires, that one charged with misconduct sball be
afforded a reasonable opportunity to meet his accusers face
to face.' (end of quotes)
Form I Award No. 32047
Page 7 Docket No. MW-32063
97-3-94-3-442
Notwithstanding the above, the Carrier is in violation of the terms
and provisions of Agreement Rule 48 by withholding Mr. Patterson from
service before he was given a fair and impartial hearing. Agreement Rule
48(x) states in part;'
AGREEMENT RULE 48(x)
(a) Except as provided in Paragraphs (k), (1) and (m) of this
provision, an employe who has been in service more than
sixty (60) calendar days, whose application has not been
disapproved, shall not be dismissed or otherwise disciplined
until after being accorded a fair and impartial hearing.'
It is Mr. Patterson's right according to Agreement rule 48(x) to be
accorded a fair and impartial hearing to determine whether or not there
is cause to assess discipline. By removing Mr. Patterson from service
denied him the right to a fair and impartial hearing before discipline was
assessed and showed the Carrier's prejudgment.
In view of these facts and circumstances the Organization has no
alternative but to submit a claim in behalf of Mr. Patterson claiming he
must be paid for all time withheld from service beginning on January 18,
1993, continuing until he is returned to service, benefits are claimed as if
he had worked and it is requested the unjust removal from service be
expunged from his personal record.
Please advise when this claim will be allowed as presented. As
always your cooperation is greatly appreciated.
Sincerely yours,
Joseph V. Larsen"
On June 25, 1993, the Organization wrote Superintendent Riney a letter which
read as follows:
Form 1 Award No. 32047
Page 8 Docket No. MW-32063
97-3-94-3-442
"Dear Sir:
This refers to the claim dated March 26, 1993, which was filed in
behalf of Oregon Division Track Subdepartment Truck Driver M. R
Patterson SSN. 544-74-0355 because the Carrier violated the Agreement
specifically, but not restricted to Agreement Rules 48, 48(x), 48(k) Section
4(a) and (b) from Appendix `A' (Nonoperating (MofW) National Vacation
Agreements), the 12/17/41 Agreement and past practice when on January
18, 1993, it removed Claimant Patterson from service without cause and
without a hearing.
The March 26, 1993, claim has not been denied within the time
limits, therefore this grievance and claim should be allowed as presented.
Agreement Rule 49 (a) 1. states in part:
Agreement Rule 49(x)1.
`If not so notified, the claim or grievance shall be allowed as
presented but this shall not be considered as a precedent or
waiver
of
the contentions of the Carrier as to other similar
claims or grievances.'
Please advise as to the date Claimant Patterson can expect payment
of this claim and when he will be reinstated.
Sincerely yours,
Joseph V. Larsen"
Superintendent Riney responded to the Organization by letter dated August 6,
1993, which read as follows:
"Dear Mr. Larsen:
Referring to your letter of June 25, 1993, Me 2279-48K, in
connection with Truck Driver M. R Patterson:
Form 1 Award No. 32047
Page 9 Docket No. MW-32063
97-3-94-3-442
As you know, Mr. Patterson removed from service for failure to
protect his assignment, under the provisions of Rule 48(k). There is no
requirement to hold a conference within any `time limits'; and as I stated
in my letter of March 13, 1993, I am not agreeable to holding such a
conference. Mr. Patterson has a long history of absenteeism problems, and
I see no advantage to discussing the matter any further.
Accordingly, your claim is denied in its entirety account lack
of
merit and agreement support."
The dispute was subsequently handled on the property up to and including the
highest officer of the Carrier without resolution and is now before this Board by
submission of the parties respective Ex Parte Submissions.
A review of the record submitted by the parties to this dispute reveals the
following: The Carrier relied upon Rule 48(k) as basis for the dismissal of the Claimant.
Rule 48(k) reads as follows: "Employees absenting themselves from their assignments
for five (5) consecutive working days without proper authority shall be considered as
voluntarily forfeiting their seniority rights and employment relationship, unless
justifiable reason is shown as to why proper authority was not obtained."
In this dispute, the record shows that there was substantial unrefuted evidence
that the Claimant
did
make an effort on more than one occasion to notify his superiors
of
the problems that he was encountering.
The Carrier officials ignored the Claimant's attempts to apprise them of his
situation and dismissed him without giving him an opportunity to be heard.
Rule 48(k) cannot be relied upon by the Carrier as they failed to give the
Claimant an opportunity to explain his position.
In addition, the record clearly shows that the Organization was denied a
conference which they requested in attempting to represent the Claimant's interests.
The record further shows that the Carrier totally disregarded the claim filed by the
Organization in behalf of the Claimant.
Form 1 Award No.
32047
Page 10 Docket No.
MW-32063
97-3-94-3-442
The error on the part of the Carrier in not affording the Claimant an opportunity
to explain his circumstances surrounding the incident, the subsequent dismissal of the
Claimant and total disregard for following prescribed Agreement procedures for
handling and processing disputes which included clear time limit violations can only lead
to one conclusion that the Carrier's dismissal of the Claimant was unwarranted,
prejudicial and a clear abuse of discretion.
Accordingly, it is the decision of this Board that the claim of the Organization
filed in behalf of the Claimant must be sustained as presented in its entirety.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) 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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 10th day of June 1997.
Carrier Members' Dissent
to Award 32047 (Docket MW-32063)
Referee Charles J. Chamberlain
The Majority in Award 32047 erroneously found that "Rule 48(k) cannot be relied upon
by the Carrier as they failed to give the Claimant an opportunity to explain his position." The
Majority takes this rationale a step further to find that the Carriers's denial to conference
regarding this matter is in violation of Rule 48, regardless of the specific. unambigious language
in Rule 48(k).
The Board has exceeded its authority under the Railway Labor Act when it mandates that
Rule 48(k) language be given the meaning by the Majority that affected employees under this
self-executing provision are entitled to a conference. Since the inception of this rule. employees
voluntarily forfeiting their seniority rights under this provision may explain their circumstances
in any manner of ways, including by letter. as was done in this case. For the Board to hold that
48(k) includes the requirement to hold a conference is to allow the Board to rewrite the plain.
agreed-upon language of 48(k). The Board is not entitled to author or amend in this manner.
The reason for a self-executing termination clause, such as 48(k), is to allow better time
management by the Organization and Carrier alike, by not creating unnecessary procedural hoops
for either party to jump through in cases, such as five consecutive days absent without authority,
that are clearly flagrant violations of policy and work rules.
We dissent.
Martin W. Fingerhut
Paul V. Varga
Michael C. Lesnik