Form 1 NATIONAL RAILRI AD ADJUSTMENT BOARD
THI DIVISION
Award No. 37283
Docket No. CL-37011
04-3-01-3-678
The Third Division consisted o the regular members and in addition Referee
Joshua M. Javits when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Indiana H rbor Belt Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Commi lee of the Brotherhood (GL-12786) that:
1. The Carrier violated the rules of the parties' Agreement made
effective December 1 1949 and amendments thereto,
particularly rules 13, 3 , 46, 48, among other applicable rules
and agreements, when o Wednesday, March 14, 2001 it held a
faulty investigation conducted in an unfair and partial manner,
which resulted in an unjust decision of ten (10) days suspension
from service commencing Thursday, April 5, 2001 through
Saturday, April 14, 2001, inclusive, against J. P. Fitzer and his
employment record, whose only wrongdoing was that he was
absent from work Janua y 8, 9, 10, 17, 20, 21, 22, 27, 28 and 30,
2000 on account of a c runic back ailment following a heart
attack in late 15499.
2. The Carrier shall be required to compensate Claimant Fitzer
eight hours each day at straight time rate for all days he was
held in suspensiion status without pay, April 5, 2001 to April 14,
2001 and in addition thereto be paid for all overtime he would
have worked had he no been suspended, plus all benefits he
may have lost and expenses incurred during such period. That
Claimant Fitzer's employment record shall be cleared of all
notations placed thereon resulting from the unfair and partial
investigation which brought forth the absurd decision of guilt,
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during which investigation Claimant Fitzer was deprived of the
right to face and interrogate his accuser.
3. The Carrier shall be required to cancel the Clerical
Absenteeism Procedural Statement account of its absurd
interpretations and application of'its provisions to reprimand,
suspend or dismiss employees who have had the misfortune of
being off of work more than normally expected in a 6 month
period due to illness, injury and/or medication problems, etc.,
regardless if the absences were legitimate and approved, and
paid 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
officer.
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.
On October 18, 2000 the Claimant was directed to attend a Hearing on
November 21, 2000 to investigate a charge of alleged excessive absenteeism during
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the period from January 1 through June 30, 2000. Because he had been absent on
ten occasions, the Carrier concluded that the Claimant had violated the Clerical
Employee Absenteeism Policy by exceeding the authorized absence limit applicable
to that period.
The record reveals that the Claimant was absent on January 8, 9, 10, 17, 20,
21, 22, 27, 28 and 30, 2000.
The Investigation was subsequently postponed until March 14, 2001.
Following the Investigation, the Claimant was suspended from employment
for a period of ten days. However, the Organization contends that the disciplinary
action taken was flawed because it was not undertaken within the prescribed time
limits set forth in Rule 36 of the parties' Agreement.
Rule 36 (h) of the Agreement provides that "when employees are subject to
discipline, the same shall be made effective within thirty (30) days from the date the
irregularity was known by proper official."
Because the alleged offense occurred between January land-June 30, 2000,
the Organization maintains that the Carrier was required to provide notice of the
proposed disciplinary action within 30 days following this period. As noted above,
the Carrier did not inform the Claimant of the proposed disciplinary Investigation
until October 18, 2000. Furthermore, the disciplinary action against the Claimant
was not imposed until March 14, 2001.
Based on the above, it is clear to the Board that the Carrier failed to comply
with the time limits outlined in the parties' Agreement. As a result, the Board
concludes that the disciplinary action taken by the Carrier should be set aside
because of its untimeliness.
The Claimant is to be made whole for all losses of pay sustained during the
period of suspension. Additionally, the notice of suspension should be removed
from the Claimant's employment record. All other requests for benefits asserted by
the Claimant are denied.
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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 17th day of November 2004.