Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36938
Docket No. CL-37003
04-3-01-3-669
The Third Division consisted of the regular members and in addition Referee
John B. LaRocco when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Indiana Harbor Belt Railroad Company
STATEMENT OF CLAIM::
"Claim of the System Committee of the Brotherhood (GL-12785)
that:
(1) The Carrier violated the rules of the parties' Agreement made
effective December 1, 1949 and amendments thereto,
particularly Rules 13, 36, 46, 48, among other applicable rules
and agreements, when on Wednesday, March 14, 2001 it held a
needless investigation conducted in an unfair and partial
manner, which resulted in an unjust decision of reprimand
against the employment record of employee Ms. Simone
Groescbe, whose only wrongdoing was being absent from work
January 4, 5, 6, 7 and 10, 2000 account of upper respiratory
infection, on March 9, 2000 absent account of illness and absent
May 8, 18, 119, 22, 23 and 24, 2000 due to having heart
palpitations fair which she was in and out of the hospital during
said period having tests.
(2) The Carrier shall be required to expunge from employee
Groesche's employment record all notations placed thereon
resulting from the unfair and partial investigation which
produced an absurd decision of guilt. Importantly, employee
Groesche was not granted the right to face and interrogate her
accuser.
Form 1 Award No. 36938
Page 2 Docket No. CL-37003
04-3-01-3-669
(3) The Carrier shall be required to cancel the Clerical
Absenteeism Procedural Policy account of its absurd
interpretations and applications of its provisions to reprimand,
suspend or dismiss employees who have the misfortune of being
off work more than normally expected in a six month period
due to illness, injury and/or medication problems, etc.,
regardless if the absences were legitimate and approved, and
paid for under the sick leave rule.
(4) The Carrier knowingly violated the provisions of Rule 36 of the
current Agreement when it held a faulty investigation and
applied unwarranted discipline in this case beyond thirty (30)
days from the date the irregularity was known by the proper
Carrier official.
(5) This dispute has been presented and progressed in accordance
with the provisions of Rule 13 of the Agreement and should be
sustained."
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.
After thoroughly and carefully reviewing the record, the Board concludes
that there is insufficient evidence to find that the Claimant committed the charged
infraction. Thus, the reprimand shall be removed from the Claimant's record.
Form 1 Award No. 36938
Page 3 Docket No. CL-37003
04-3-01-3-669
The Board also holds that it lacks jurisdiction to rescind the Carrier's
attendance policy because the Board is not empowered to dispense declaratory
relief. (See Third Division Award 36177.)
AWARD
Claim sustained in accordance with the Findings.
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 22nd day of March 2004.