This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant, a Laborer with approximately 30 years of service with the railroad, was absent from duty on his assignment in Grand Island, Nebraska, on June 13, 2003, without proper authorization. In his career with the railroad the Claimant has previously held positions as Assistant Foreman, Foreman, Assistant Roadmaster, and Roadmaster. He testified that he has the medical condition of clinical depression that contributed to his missing work and being absent without authority on June 13, 2003.
At the Investigation, which was held on March 11, the Claimant presented a letter dated March 9, 2004, signed by D. B. Jameson, M.D., a physician with Prairie Creek Family Medicine, which stated as follows:
The Claimant testified that as of the date of the letter and, currently, at the time of the Investigation, he was under a doctor's care for his depression. He stated that he desired the Carrier to assist and support him regarding his medical needs so that he could remain employed and be a responsible employee.
The Claimant admitted in the Investigation that he did not comply with Rule 1.15 Duty - Reporting or Absence, which states as follows: Form 1 Award No. 38955
The Local Chairman noted that R. G. Bacon responded for the Carrier to the Local Chairman's letter as follows:
In his closing statement in behalf of the Claimant at the Investigation, the Local Chairman contended that the Carrier "is violating their own policy by not handling this case through the alternative handling procedures of the PEPA Policy."
Following the Investigation, by letter dated April 8, the Carrier notified the Claimant that as a result of the Investigation he was being issued a five-day suspension beginning April 8 and ending April 12, 2004, and that he was required to contact a particular EAP counselor for violation of Rule 1.15 in connection with his unauthorized failure to report for duty on June 13, 2003.
The Organization, by letter of its Vice General Chairman dated May 2, 2004, appealed the discipline. First, the letter argued, the Carrier improperly denied its request, made both before and at the Hearing, to have this matter handled through the Carrier's PEPA policy. Such denial, the appeal asserted, constituted disparate treatment because "the Carrier has on numerous occasions granted this under far more serious offences than the one we are dealing with here." In addition, the appeal letter claimed that "the discipline issued did not fit the offence . . . ." The Organization contended that the discipline administered was especially inappropriate in view of the fact that the Claimant was under a doctor's care for clinical depression on June 13, 2003, the date of his absence. The Organization argued that the Carrier needed to take into consideration all of the circumstances of this 30-year employee's absence "and realize that what happened to [the Claimant] was nothing more than an anomaly caused by one episode of mental illness of which he had no control over."
In its answer to the Organization's appeal letter, the Carrier, by letter from its Division Manager dated June 7, 2004, asserted that the Claimant had been on vacation for five weeks prior to June 9, 2003, the date that he was supposed to return to work following vacation, but did not report for the entire week of June 913, 2003. The Carrier acknowledged that the Claimant "left messages on the Grand Island Section's answering machine," but asserted that he "failed to contact his Foreman or Roadmaster . . . to obtain authority to be absent from work." The Carrier noted that the Claimant acknowledged at the Investigation that he missed work on June 13, 2003, without proper permission to be absent from work and that Form I Award No. 38955
he thereby violated Rule 1.15. The fact that the Claimant was being treated for clinical depression, the Carrier asserted, did not relieve him of the responsibility to obtain proper authority for being absent from work. The Carrier further asserted that the Organization's request for alternative handling pursuant to the PEPA Policy was based on the assumption that the clinical depression of which the Claimant was diagnosed was the reason he failed to report for duty, but that "[t]his fact was not proven during the formal investigation." The Carrier maintained that being absent from work without proper authority was "a serious rule violation" that "justifie[d] [that] Alternative Handling be denied in this case."
In a subsequent appeal letter dated July 19, 2004, to the General Director Labor Relations, the Vice General Chairman, in complaining of the Carrier's failure to handle this case under its PEPA policy, asserted that the Claimant "is a long time employee with no history of discipline" and argued that "there simply was no logical reason not to handle this case under the Carrier's PEPA policy."
In responding on September 9 to the Vice General Chairman's argument, the General Director Labor Relations quoted the Division Engineer's response of March 4, 2004, to the Local Chairman's letter of the same date verbatim and added the following comment:
The parties discussed this case in conference on December 14, 2004, without resolution, and on January 19, 2005, the Vice General Chairman again wrote to the General Director Labor Relations reiterating that the case should have been handled through the Carrier's "alternative discipline policy," that the Claimant had not called to report off because he had a mental illness which caused him not to use good judgment, and that the discipline was excessive in view of the Claimant's "discipline free employment of over thirty years."
Although during the internal appeal process the Carrier took the position that the Claimant's one-day absence of June 13, 2003, without authority was "a serious rule violation," the Carrier's Policy for Employee Performance Accountability, in Appendix B, contains a list of "Serious Rule Violations." The one Form 1 Award No. 38955
violation in that list related to attendance is item 6, which states, "Extended unauthorized absence (as may be defined by labor agreements and applicable law)." Of course an employee should attend work every day, and it is an infraction to miss work without authorization. However, by implication, in the Carrier's own categorization of violations in Appendix B, it indicated that a single day of unauthorized absence (assuming no history of poor attendance) although by no means condoned, was not to be considered a serious Rule violation.
The Carrier asserts, however, that the Claimant was not absent only one day, but the entire week, from June 9 through June 13, 2003. It also relies on Division Engineer Bacon's letter of March 4, 2004, as indicating that the Claimant had not been absent merely for one day. These arguments only confirm that, despite the fact that the charge letter refers to a single day of absence, the Carrier has not administered discipline in this case on the basis of a single day of unauthorized absence, but on alleged multiple absences.
Our study of the record and arguments persuades the Board that the Carrier imposed a suspension of five days as the discipline in this case on the basis of alleged past attendance violations and absences for which the Claimant was never previously reprimanded or even charged. The Claimant was charged in this case with a single day of unauthorized absence. The Board is unable to sustain a five-day suspension for that infraction where it is apparent from the record that the basis for such penalty was other alleged absences or attendance violations for which the Claimant was never charged or disciplined and, so far as the record shows, which were never subject to review in the grievance procedure. Under these circumstances, and in agreement with the Organization's contention that the discipline administered in this case was excessive for the violation charged and found, it is the Board's opinion that the proper discipline for the Claimant's infraction would have been a written reprimand. The Board finds that the five-day suspension should be reduced a written reprimand and that the Claimant should be made whole for five days of lost wages.
The Board considered the Organization's contention that the Claimant's inffraction should have been handled under the Carrier's Policy for Employee Performance Accountability. Specifically the Organization relies on the provision in the Policy under the heading Non-Serious Rule Violations which states, "An employee involved in a first non-serious incident may choose alternative Form 1 Award No. 38955
handling . . . ." No precedent regarding alternative handling was cited by either party involving a non-serious Rule violation. The Organization contends that the quoted provision makes it mandatory to refer a first non-serious Rule violation to alternative handling when requested by the employee or the Organization on the employee's behalf. The Carrier contends that it has the discretion to determine which alleged violations to administer through alternative handling. The Board is of the opinion that this case is not an appropriate one for determination of so important an issue in view of the overall circumstances of this case.
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 ffollowing the postmark date the Award is transmitted to the parties.