THIRD DIVISION
Award No. 44509
Docket No. 45978 21-3-NRAB-00003-200543
The Third Division consisted of the regular members and in addition Referee Barbara C. Deinhardt when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(National Railroad Passenger Corporation (AMTRAK) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The discipline (dismissal) imposed upon Mr. A. Konieczki, by letter dated August 27, 2019, for alleged violation of Amtrak’s Standards of Excellence and National System Attendance Policy For All Agreement-Covered Employees in connection with allegedly being absent without leave on thirty-one (31) occasions between June 10 and July 22, 2019 was arbitrary, capricious and constituted a violation of the Agreement (Carrier’s File BMWE- 156265-D NRP).
As a consequence of the violation referred to in Part (1) above: We hereby, request the Carrier make Mr. Konieczki whole, restoring all lost wages and benefits beginning August 17, 2019. Additionally, we request these charges be expunged from his personnel file and he otherwise be made whole.”
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.
The Claimant was absent on Family Medical Leave Act leave starting on March 19, 2019. He was out of work until August 17, 2019 when he was dismissed for attendance after being Absent Without Leave on 31 occasions between June 10 and July 22, 2019.
The Carrier argues that he was only approved to be on FMLA leave from March 19 until June 9, 2019. There was no documentation provided by the Claimant supporting the extension of his leave beyond what had been approved. Therefore he was terminated. The Carrier notes that in 2018, the Claimant received a (deferred) two-day suspension for absenteeism. Subsequently he was charged and received a 12- day suspension for lateness and then a 10-day suspension for falsifying his time card after arriving to work late again. Termination is the appropriate penalty in this case.
The Organization argues that the Carrier failed to meet its burden of proof. There is no documentation in the record that supports the Carrier’s assertion that he was only approved for leave until June 9. The Claimant’s doctor submitted a note that the Claimant would be on medical leave from March 19 until August 17. Further, the note states that the request had been submitted to the Carrier on June 19.
In addition, the Organization asserts that the Claimant was denied a fair and impartial hearing. He was not properly notified of the investigation because the notice was sent to his old address, even though the Carrier clearly had his new address, as correspondence had been sent to the new address. Further, the charges against the Claimant were not of such seriousness as to justify holding the Claimant out of service pending the investigation. There was no potential harm to the Carrier’s operations if the Claimant had been permitted to return to service on August 17 when he was released by his doctor. Finally, the Organization argues that termination is excessive.
Upon a review of the record, the Board finds as follows. It is undisputed that the Claimant was out on FMLA leave from March 19 to June 9 (or 19), 2019. He testified that he went to the doctor on June 19. He read a letter from the doctor dated August 22 in which the doctor states that when the Claimant was seen on June 19, “his return to work date was amended to August 17.” The doctor further states that the
paperwork attached to the August 22 letter had been faxed “at that time” and another form faxed on August 13 because “he seemed to be having trouble on his employer’s end.” The doctor did not testify at the hearing. The documentation submitted by the Claimant is unclear. While there is a fax tag on all the pages showing that they were faxed on August 21, the day before the hearing, and a stamp on one of the forms showing that it was faxed on August 13, there is no fax tag or other evidence on any of the forms showing that it was faxed to the Carrier on June 19. However, even assuming that the doctor did in fact send the request to extend the leave, the doctor has no authority to extend the leave, only to request that it be extended. There is no dispute that the Claimant never reached out to the Carrier to see if the request had been granted.
We have considered the procedural arguments raised by the Organization and find them to be without merit.
We find that the Carrier has met its burden of proving that the Claimant was absent without leave and that termination is appropriate in this case, given the three suspensions in 2018, at least one of which was a final warning.
Claim denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 29th day of July 2021.