Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42952 Docket No. MW-43591 18-3-NRAB-00003-160112

The Third Division consisted of the regular members and in addition Referee Sean J. Rogers when the award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"(1) The discipline (dismissal) imposed on Mr. W. Kurtz by letter

dated October 27, 2014 for alleged '. . . 4th Violation of Policy 5612 (CP Discipline Policy) - Violation of GCOR 1.15 DutyReporting or Absence***' in connection with a formal Investigation held on October 2, 2014 was on the basis of unproven charges, excessive and in violation of the Agreement (System File B-1434D-103/8-0001 DME).

(2) As a consequence of the violation referred to Part (1) above,

Claimant W. Kurtz shall be reinstated to service with seniority and all other rights unimpaired, his record cleared of the charges leveled against him and <*** must be made whole for all losses incurred as a result, such as but not limited to, wages, retirement, months of service under RRB, reimbursement for loss of health and welfare benefits, or expenses incurred throughout the discipline process and subsequent to assessed discipline. The Claimant must be made whole for all loss. This includes travel time and mileage to and from the Hearing location and any additional expenses involved."

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.

Claimant William Kurtz was hired April 13, 2009 and held seniority in the Carrier's Maintenance of Way Department as a Machine Operator B, Rail Gang at the time of incident giving rise to his October 27, 2014 dismissal based on a fourth infraction of Carrier's General Code of Operating Rules (GCOR) 1.15 Duty Reporting or Absence.

GCOR 1.15 Duty - Reporting or Absence states as follows:

"Employes must report for duty at the designated time a place with the necessaryequipmenttoperformtheirduties. Theymustspendtheirtime on duty working only for the railroad. Employes must not leave their assignment, exchange duties or allow others to fill their assignment without proper authority. Continued failure by Employes to protect their employment will be cause for dismissal."

The record establishes the Claimant had three prior infractions for failure to report. For the first incident on January 22, 2014, the Claimant waived appeal and received a five day record suspension. For the second incident on May 21, 2014 the Claimant waived appeal and received a 10 day record suspension. Finally, For the third incident on June 26, 2014, the Claimant waived appeal and received a 30 day record suspension.

"Carrier Policy 5612 - U.S. Discipline Policy states as follows:

Progressive Discipline:

"Infractions will be dealt with using progressive discipline, unless they warrant outright dismissal.

Managers retain the discretion to handle appropriate minor matter through informal coaching."

First infraction - 5 working days unpaid suspension

Infractions occurring within 24 months of compensated active service of a previous infractions will be handled as follows:

"Second infraction - 10 working days unpaid suspension Third infraction - 30 working days unpaid suspension Fourth infraction - Dismissal"

Note: For attendance related cases he Company will assess record suspensions only."

The Claimant's fourth GCOR 1.15 infraction occurred on September 22, 2014. On September 23, 2014, Jeff Sundet, Assistant Director of Track Renewal, charged the Claimant with a fourth violation of Policy 5612 (Discipline Policy) and GCOR 1.15 Duty - Reporting or Absence. As a result, on October 2, 2014, the Carrier convened an Investigative Hearing conducted by Hearing Officer Sundet in Mason City, Iowa.

The facts are undisputed. On September 22, 2014, the Claimant was to report to Monona, Iowa for work at 7:00 a.m. the Claimant said that morning he made numerous attempts to reach Supervisor Collin Klemp by cell phone before 7:00 a.m. He said that he was not able to reach Klemp due to poor cell phone coverage until 7:05 a.m.

The Claimant admitted that he violated Policy 5612 and GCOR 1.15 Duty at the start of the October 2, 2014 Investigatory Hearing.

The Carrier argues that the reporting and absence rules are crucial to its operations and for the safety and protection of Carrier Employes. The Carrier asserts that the Claimant had a responsibility to report to Monona at 7:00 a.m. The Carrier argues he did not report on time and so, he did not protect his assignment. Because this is a fourth violation of GCOR 1.15, the Carrier maintains that Policy 5612 requires the Claimant's dismissal.

The Organization argues that there are mitigating factors and procedural irregularities to take into account including the Claimant's call, albeit late, to the Supervisor Klemp and objection which were unsustained at the Investigatory Hearing. The Organization argues as well that the Claimant had no malicious intent when he failed to protect his assignment.

The Board has carefully reviewed and considered the record and finds that the Claimant did violate for the fourth time GCOR 1.15 and Policy 5612. However, under the unique circumstances and the mitigating factors of this case, the Claimant shall be returned to service, but without back pay. Insofar as this decision is based on unique circumstances, the Board deems this award non-referable.

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 14th day of February 2018.