On February 1,1996, Claimant was given a return-to-duty physical examination which included a drug screen. The lab report Indicated that Claimant's urine tested positive for marijuana metabolites.
On February 14,1996, Carrier instructed Claimant to attend an Investigation on February 20,1996. The Hearing was postponed to and begun on October 31,1996. The Hearing was recessed and reconvened and concluded on February 13, 1997. On February 27, 1997, Carrier advised Claimant that he had been found guilty of the charge and had been dismissed from service.
The Organization contends that Carrier violated the Agreement by delaying the Hearing unreasonably, following the initial postponement. The Organization further contends that Carrier failed to prove the alleged violations. The Organization maintains that Claimant was taking medication for a kidney infection at the time of the drug screen and that Claimant's medical condition and/or his medication triggered a false positive low result.
Carrier contends that the Organization was responsible for the delay. According to Carrier, the continuation of the Hearing was delayed because the parties were trying to resolve the matter. Furthermore, in Carrier's view, the Organization failed to contact the Hearing Officer to reschedule the Hearing until September 1996, at which time it was promptly rescheduled.
On the merits, Carrier contends that it established the chain of custody of Claimant's urine sample, the regularity of the testing procedure and the positive test result. Furthermore, In Carrier's view, the evidence established that neither Claimant's medication nor his kidney infection could have produced a false positive result.
Claimant's return-to-duty physical was given on February 1,1996. The Hearing was scheduled originally for February 20, 1996, well within the 30 day time limit. The Hearing was postponed by mutual consent. It was not held until October 31,1996. The issue is whether this delay of eight months was reasonable.
What constitutes a reasonable period must be evaluated based on the particular facts and circumstance. The Agreement sets no express time limitation for the rescheduling, thereby recognizing that the reasonableness of the rescheduling will depend on the circumstances of each case.
At the beginning of the Hearing on October 31, 1996, the Vice Chairman challenged the delay. The Hearing Officer responded that he first received information that the Organization wanted the Hearing scheduled on September 19, and that he had been trying to find a mutually acceptable date since. The Hearing Officer further indicated that until September 19, he believed that the parties were trying to work the situation out.
The Vice General Chairman replied that he had been trying to get the Hearing scheduled for some time. He stated:
Later in the Hearing, the Vice Chairman indicated that he wanted to call the Carrier officials with whom he had spoken trying to schedule the Hearing if the Carrier denied that those efforts had taken place. Carrier did not deny the Vice Chairman's representations and the witnesses were not called to testify. Thus, it is clear from the uncontested statements of the Vice Chairman that the Organization was trying to get the Hearing scheduled since at least June 1996.
The only other response that Carrier raises is the Vice Chairman's failure to contact the Hearing Officer directly. However, the Vice Chairman made it perfectly clear to several Carrier officials that the Organization wanted Claimant's Hearing scheduled promptly. Furthermore, although the notice of charges Indicates that the '"r Hearing Officer should be contacted to request a postponement of the Hearing, it does not expressly require that the Hearing Officer be contacted to set the rescheduled date. Indeed, it is Carrier's responsibility to reschedule the Hearing within a reasonable time following its postponement. If the Carrier officials with whom the Vice Chairman communicated wanted the Vice Chairman to contact the Hearing Officer directly, they should have advised him to do so. There is no evidence that they did.
If the parties were, in fact, trying to arrive at a compromise, then it would be reasonable to delay rescheduling the Hearing. However, the Vice Chairman's statement dispelled any such rationale for the delay. Moreover, the Claimant was being held out of service throughout this period and, when an employee is held out of service, particular care should be exercised to reschedule his Hearing promptly. Considering all of the circumstances, we find that Carrier violated Rule 71(a) by failing to reschedule the Hearing within a reasonable time. Accordingly, we sustain the claim on procedural grounds and find no need to reach the merits. See Third Division Award 28927.
We shall order that the Claimant be reinstated to service, with seniority and benefits unimpaired, and that he be compensated for all wage loss suffered. This remedy, however, is conditioned upon Claimant's passing any reasonable physical exam, including a drug screen, that Carrier may impose prior to reinstatement. `r
This Board, after consideration ofthe 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
THIRD DIVISION
This matter has been returned to the Board on the request of the Organization for an Interpretation. In Award 33024 we found that the Agreement was violated by the manner in which the Carrier dismissed the Claimant. We ordered that the Claimant be reinstated to service, with seniority and benefits unimpaired, and that he be compensated for all wage loss suffered. The Organization seeks this Interpretation because it contends that the Claimant has not been compensated for all wage loss suffered. The request for Interpretation raises three issues concerning the calculation of backpay. We shall address them in the order in which they were presented.
The first issue concerns whether the Carrier may deduct the Claimant's outside earnings from the overall compensation. The Organization objects to such a deduction on the ground that the Carrier never raised the issue during handling of the claim on the property and that the Agreement does not expressly provide for deductions of outside earnings.
A review of the cited Awards shows that there is no consensus among Referees concerning whether a Carrier must raise the outside earnings issue during handling of the initial claim in order to preserve it for consideration in the event of a sustaining Award. There also is no consensus concerning whether outside earnings may be deducted in the absence of an express provision of the Agreement authorizing such deduction. These are certainly issues over which reasonable minds can differ and over which reasonable Referees do differ. Page 2 Serial No. 384
We need not join the abstract debate over deductions of outside earnings to resolve the dispute presented. The Carrier has cited to relevant authority that has decided these issues on this property. In Public Law Board No. 2406, Interpretation to Award 21, involving the same parties, the Board held that the Carrier could offset outside earnings even though it had not raised the issue prior to the issuance of the Award reinstating the Claimant with compensation for time held out of service. Furthermore, the Board interpreted Rule 74 of the Agreement to provide for such offsets. The Organization offered no contrary authority emanating from this property. When faced with controlling authority on the property we should follow it unless we conclude that the authority is palpably wrong. In light of the diversity of arbitral opinion on the issue in the abstract, we cannot conclude that the Interpretation to Award 21 of Public Law Board No. 2406 is palpably wrong. Accordingly, we will follow it. The Carrier may deduct the Claimant's outside earnings.
The second issue concerns the proper employee against whom to compare the Claimant for purposes of determining what overtime the Claimant would have worked had he not been wrongfully discharged. The Carrier compared the Claimant to the next junior employee at Hunter Yard in Newark, New Jersey, because that was his headquarters at the time of his dismissal and, upon reinstatement, the Claimant exercised seniority to Hunter Yard. The Organization maintains, however, that the Carrier should have compared the Claimant to three other employees: the next junior employee atAdams Maintenance of Way Base in Newark, New Jersey; the next junior employee at Penn Station, New York; and the next junior employee at Sunnyside Yard. The Organization contends that throughout his history the Claimant worked at various locations within his seniority district. The Organization maintains that the Claimant sought to maximize his overtime opportunities. The three junior employees suggested by the Organization, in its view, better capture the Claimant's real likely loss of overtime than does comparing him to the next junior employee at Hunter Yard.
We are not persuaded by the Organization's argument. We refuse to speculate as to how often and where the Claimant would have moved had he worked during the period that he was dismissed. The one undisputed objective fact apparent from the record is that at the time of his dismissal, the Claimant was headquartered at Hunter Yard and, upon his reinstatement, the Claimant exercised seniority to Hunter Yard. Under these circumstances, the Carrier acted properly in basing overtime on the record of the next junior employee headquartered at Hunter Yard. Page 3 Serial No. 384
The final issue arises because the Carrier reduced the Claimant's backpay compensation by 19 percent. According to the Carrier, the reduction was justified because of the Claimant's absenteeism during the three years prior to his dismissal. The Carrier cites several Awards that allow reductions in compensation based on a claimant's attendance record.
The purpose of an Award of compensation for lost wages is to place the Claimant in the economic position he would have occupied had he not been wrongfully dismissed. Thus, under appropriate circumstances, a claimant's absenteeism record, if left unexplained, can support a conclusion that the backpay award should be reduced to avoid giving the claimant a windfall.
In the instant case, however, during consideration on the property, the Organization asserted that the Claimant's absenteeism was due to a kidney ailment and to carpel tunnel syndrome. The Organization backed this assertion by pointing to the fact that the Carrier never initiated disciplinary action for chronic absenteeism during this period. Finally, the Organization asserted that the Claimant had been treated successfully for these medical conditions prior to his dismissal. Thus, in the Organization's view, consideration of the Claimant's prior attendance record distorts the picture of the earnings he would have had if he had not been dismissed.
The Organization's assertions concerning the Claimant's medical conditions were not disputed during handling on the property. Accepting these assertions as true, which on the record presented we must do, leads inevitably to the conclusion that the Claimant's attendance record for the three years prior to his dismissal cannot serve as a basis for reducing his compensation. Accordingly, we hold that the Carrier acted improperly in reducing the Claimant's backpay by 19 percent.
Referee Martin H. Malin who sat with the Division as a neutral member when Award 33024 was adopted, also participated with the Division in making this Interpretation.