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.
The operative facts underlying these claims are not in dispute. Claimant had some 17 years of service at the time these matters arose in August 1995. His employment record, up to that point in time, reflected four prior instances of discipline for absence without authority. For these infractions, Claimant initially received a censure and then later suspensions of 15, 90 and 30 days, respectively. His last previous suspension was in December 1993.
Claimant was again absent without authority on August 17 and 18, 1995. August 19 and 20,1995 were Claimant's scheduled rest days. On Sunday evening, August 20, Claimant's wife telephoned Carrier to inform that Claimant would be absent on August 21 and 22, 1995. The reason she gave was that Claimant had a death in the family. Carrier granted Claimant permission to be absent based on this representation. In reality, Claimant was incarcerated August 20 through 22, 1995. In addition to his jail time, Claimant was Court ordered to submit to an in-patient alcohol rehabilitation Form 1 Award No. 32889
program. He was admitted to the 14-day program on August 23, 1995. Upon his release, Claimant returned to work.
As a result of the foregoing events, Carrier notified Claimant to attend two separate Investigation Hearings. The first Investigation focused on the absence on August 17 and 18,1995. The second Investigation dealt with the absence on August 21 and 22, 1995. The Investigations were postponed until September 28, 1995 to allow Claimant to complete the rehabilitation program. On October 20, 1995, Claimant was issued two disciplinary notices. The first found him in violation of Rule 1.15 for his unauthorized absence on August 17 and 18, 1995. It imposed a 30-day suspension for the period from October 21 through November 19, 1995. The second disciplinary notice imposed dismissal for Claimant's unauthorized absence on August 21 and 22, 1995.
At the Investigation Hearings, the Organization objected to the fairness and impartiality of the process for a number of reasons. Among them was the allegation that the Carrier was trying to improperly maximize the disciplinary penalties by treating the Claimant's absence as two separate instances. In reality, the Organization maintained that Claimant's absence was one continuous instance resulting from Claimant's affliction with alcoholism.
Because of the Carrier's separate treatment of Claimant's absence, the Organization filed separate claims on November 28, 1995 to challenge the disciplinary action. According to the return receipt, Carrier received the two claims on December 1, 1995. Carrier did not issue its denials of the claims until January 31, 1996. On March 19, 1996, the Organization appealed from Carrier's denials. In addition to renewing its original basis for challenging the two disciplines, the Organization also noted the Carrier's failure to respond within time limits per Rule 27(a). That Rule reads, in pertinent part, as follows:
Carrier responded to the new procedural challenge by contending that the claims were not actually received in the appropriate official's office until December 4, 1995. When measured from this date, the Carrier maintained that its denials were timely. Thereafter, the parties maintained their respective positions until the two matters were combined into one Docket submitted to the Board.
Because of the nature of the time limits issue, we must deal with it as a threshold matter. In defense of its position, the Carrier raised Decision No. 16 of the National Disputes Committee. The Organization vigorously asserted that NDCD No. 16 was not applicable to discipline disputes.
The proper application of NDCD No. 16 has been the subject of many Awards of the various divisions of this Board as well as several Public Law Boards. Most of them, if not all of them, have been provided to us. They have all been studied in detail. Because a few have already done a thorough and well-reasoned analysis of the proper application of NDCD No. 16, we will not attempt to do so again here. See, for example, Third Division Award 27842. On this property, however, the parties already have Award 63 of Public Law Board No. 4370, issued on March 7, 1997. This decision interpreted the identical time limits language. We will follow this precedent because to do so provides the parties with a greater degree of certainty and predictability in their claims handling processes.
Because the absence in question has been treated as two separate claims from the outset, we must deal with them as separate matters as well. We turn, therefore, to the 30-day suspension for Claimant's absence on August 17 and 18, 1995, what we will refer to as Claim No. 1. Despite the debate raging over whether NDCD No. 16 applies to disciplinary matters as well as continuing rules claims, the operation of the decision is well settled. It operates to limit a Carrier's liability for an untimely response where the claim involved is one where liability is not fixed and continues to accrue day by. day. NDCD No. 16 does not impact claims where the liability is finite and already fixed. NDCD No. 16 also made clear that the Carrier's response time limit begins running when a claim or appeal is received by the Carrier.
In Claim No. 1, we must find that Carrier failed to comply with the response time limit. The evidence establishes that Carrier received Claim No. 1 on December 1,1995. Its response on January 31,1996 was untimely under Rule 27(a). Given this procedural failure, the remaining question is what is the proper application of Rule 27(a) in light of Form 1 Award No. 32889
NDCD No. 16. Recall that the suspension involved in Claim No. 1 was for 30 days running from October 21 through November 19, 1995. The Carrier's backpay liability, therefore, was finite and already fixed as of November 19, 1995, the final day of the suspension. Under these circumstances, when Carrier missed the Rule 27(x) time limit, the decision in NDCD No. 16 did not operate to prevent Rule 27(x) from applying as literally written. Accordingly, Claim No. 1 must be allowed as presented. As a result, the discipline in Claim No. I must be set aside. Claimant's record, therefore, must be cleared of the discipline and he must be compensated for all wage loss suffered. As noted in Rule 27(x), this default disposition is without precedent or waiver of the contentions of the Carrier as to other similar claims or grievances.
Claim No. 2 deals with the absence on August 21 and 22, 1995. On this claim, we must again find that Carrier failed to satisfy the Rule 27(x) time limit. However, since Claim No. 2 involved a dismissal, the backpay liability was not finite and fixed as of the date of Carrier's procedural error. It continued to accrue with each calendar day. The proper application of Rule 27(x), as modified by NDCD No. 16, is to limit Carrier's default liability. The default remedy is to allow the claim for backpay that had already accrued up to the date of Carrier's untimely denial, which was January 31, 1996. According to the application of NDCD No. 16, the backpay liability after that date, as well as the substantive merits of the disciplinary action, remain as viable issues for determination.
We have reviewed the other procedural objections raised by the Organization and find them to lack merit. Therefore, the only remaining issue is the whether Claimant's dismissal was appropriate in light of all of the relevant circumstances shown by the record.
The evidence in Claim No. 2 shows that the Carrier's dismissal action was triggered by Claimant's absence on August 21 and 22, 1995. Carrier has specifcally denied that the time Claimant spent in the rehabilitation program played any role in its disciplinary decision. The propriety of Carrier's dismissal, therefore, must stand or fall based on the circumstances surrounding the two-day absence taken together with Claimant's prior disciplinary record.
The evidence surrounding the absence in Claim No. 2 shows it to have been less egregious than the two-day absence in Claim No. 1. That absence on August 17 and 18, 1995 caught the Carrier with no advance warning. Carrier did have advance notice of Form 1 Award No. 32889
Claimant's impending absence for August 21 and 22, 1995. In fact, based on the reason Carrier was given by Claimant's wife, Claimant actually had permission to be absent. While it is true that the permission was obtained under false pretenses, the record does not justify holding Claimant accountable for the explanation. According to his testimony at the Investigation, Claimant did not tell his wife to give the false explanation nor was he aware she had done so. Carrier produced no other probative evidence to contradict this evidence. Nonetheless, Claimant's absence was unauthorized. As this Board has held many times, incarceration is not a defense to a charge of unauthorized absence. In addition, permission obtained by false pretenses is not valid.
In deciding upon dismissal, Carrier also took into consideration Claimant's past disciplinary record. For purposes of this dismissal decision, Carrier considered the 30day suspensio because of Carrier's time limit default in Claim No. 1, that infraction has been cleared from Claimant's record. Accordingly, it may not stand as a valid consideration in Carrier's dismissal decision.
What the record leaves in Claim No. 2, then, is a two-day unauthorized absence occurring under less egregious circumstances than the two-day unauthorized absence in Claim No. 1. It is immediately apparent that the penalty of dismissal is not warranted by the evidence. Indeed, the overall circumstances do not support a disciplinary penalty of greater severity than what the Carrier found to be appropriate for the more egregious two-day absence in Claim No. 1. Accordingly, we find Claimant's unauthorized absence on August 21 and 22, 1995 to warrant no more than a 30-day suspension.
Under the peculiar circumstances of this combined docket, there is no evidence Claimant suffered a wage loss for both his dismissal in Claim No. 2 as well as the suspension from Claim No. 1. The dismissal ran concurrently with the suspension. Since the dismissal has hereby been converted to a 30-day suspension, Claimant is entitled to backpay only from November 19, 1995. Claim No. 2 is sustained in all other respects. Claim No. l is sustained as to the default rescission of discipline and clearance of Claimant's record as to that matter. Because of the remedy provided on Claim No. 2, there is no backpay remedy for Claim No. 1. Form 1 Award No. 32889
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.
Carrier Members Dissent
to Award 37.889 (Docket MW-33649)
Referee Wallin