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 Claimant, a Trackman at the Harrison Lake Interlocking Project, worked on the third shift (11:00 P.M. to 7:00 A.M.) at the time in issue. He received a Notice of Formal Investigation dated April 15, 1999, charging him with failing to follow the "Attending to Duty" Standard in the Carrier's Standards of Excellence and failing to follow the Absenteeism Policy for Operations Support, effective July 1, 1997, which defines unacceptable absenteeism as three or more periods of time lost within a 30 day period. After formal Hearing held on May 4,1999, the Claimant was found guilty of the charges based upon his having four incidents of absence within a 30 day period; (1) February 25 and 26, (2) March 15, (3) March 17 and (4) March 23 and 24, 1999. He was removed from service based, in part, upon his past disciplinary record of four instances of unacceptable absenteeism including a ten day suspension which was upheld in Special Board of Adjustment No. 986, Case 198, and a removal which was modified to a long term suspension (nine months) in Special Board of Adjustment No. 986, Case 200 in November 1998.
The Claimant alleges that his dismissal was unfair and capricious, that the Carrier failed to prove the charge of excessive absenteeism against him and that extenuating circumstances existed concerning the health of his family members requiring his absence on the charged dates to attend to their care, which should not be relied upon to take away his livelihood. The Claimant noted that his fiancee (Alfreda Penn) was undergoing treatment for breast cancer at the time and his newborn twins were receiving therapy for complications associated with their premature birth, both requiring his presence to care for them when necessary. He offered medical notes from various physicians explaining the conditions of his family members and the role the Claimant played in their care and treatment, which required his being away from work for periods of time. The record reveals that the Claimant filed an application under the Family Medical Leave Act (FMLA) for time off to care for Alfreda Penn, the Claimant's Form 1 Award No. 35758
wife, on April 15, 1999, which was denied by the Carrier on April 22,1999 because the spouse's name on the Claimant's personnel record did not match Ms. Penn's.
The Carrier contends that the Claimant's attendance record was very poor, and that he had been repeatedly warned of both the requirements of the attendance policy and his shortcomings. It asserts that there is no doubt that the Claimant was absent on the dates charged, constituting a violation of the Attendance Policy, and that his past record supports the penalty imposed. The Carrier argues that the reasons for excessive absenteeism are not pertinent, citing Special Board of Adjustment No. 986, Case 167; Third Division Award 31342, and that, in any event, the Claimant did not show any relationship between his family members' treatments which would normally be administered during business hours and his absences during the third shift on the dates in issue. The Carrier notes that the Claimant did not even apply for FMLA leave until after receiving the notice of charges, and that his absences in February and March 1999 were not approved for such leave.
After a careful review of the record, the Board is of the opinion that, while the Carrier proved that the Claimant had absences in excess of three incidents within a 30 day period in February and March 1999 in violation of the applicable attendance policy, there are mitigating circumstances in this case which make the imposition of the discharge penalty unduly harsh. First, there is no doubt that the Claimant called supervision before each of the cited absences, and that they were therefore noted as "excused" absences. Second, medical documentation provides substantiation for the Claimant's testimony that he was going through an extremely demanding time caring for family members who could not care for themselves, and that his presence was required to attend to both his fianck and his children on the cited dates. Third, the Claimant's testimony that the Carrier was made aware of these circumstances at the time and understood the reason he was off work was not challenged by his supervisor or the Carrier. Fourth, despite the fact that the Carrier's letter denying the Claimant's application for FMLA coverage notes that "clarification" of the Claimant's spousal relationship was necessary, there is no evidence that the Carrier considered the Claimant's situation as explained during the Investigation in determining whether FMLA leave should be granted or sought additional information from him. Further, even if the Claimant did not technically qualify for FMLA leave, the Carrier made no effort to grant him another form of leave which would have enabled him to protect his job while caring for his family. Form 1 Award No. 35758
In the Board's opinion, all of these factors mitigate against the Claimant's termination in this case, despite his record of progressive discipline for unacceptable absenteeism. However, we do not think it appropriate to reward the Claimant for a proven violation of the attendance policy by granting him pay for the time he was off. Accordingly, the Claimant should be returned to service with seniority but without backpay, and his termination should be converted to a lengthy suspension.
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.