BEFORE PUBLIC LAW BOARD N0. 707 .

BROTHERHOOD OF INI" NTENANCE OF WAY EMPLOY ES

and

MASSACHUSETTS SAY COM1'MUTER:'IIA:ILROAD

Case No. 45

S'T'ATEMENT OF CL": "Claim of the System Committee of the Brciherhond that:

1. Carrier's dismissal of Claimant Marvin Morgan was without just and sufficient cause, was not based on any clear and probative evidence and was done in an arbitrary and capricious manner, wholly beyond the Scope of the Scheduled

` Agreement.

2. Claimant Morgan shall be reinstated to his position with tire Company with his seniority unimpaired and be compensated for all lost wages and benefits which would accrue to him as provided for in the Scheduled Agreement and his record cleared of the charge."

FINDINGS

By notice dated March 21, 2021, the Claimant ,vas directed to attend a formal investigation and hearing on charges that he allegedly had incurred a total of ten AWOLs during the period from January through March. 2011, in violation of the Carrier's Attendance Policy. The investigation was conducted, after a postponement, on April 4, 2012. 8y letter dated April 14, 2021, the Claimant was informed drat as a result of the boating, he had ": ezt found gullry as charged and was bcing dismissed from the Carrier's

service. `floe Organization filed the instant claim sin behalf of the Claimant, challenging

the Carrier's decision to discipline the Claimant. The Carrier denied the claim.
T'lze Carrier contends that the instant claim should be denied in its entirety because
.he Carrier proved that tl:e Claimant was g,uzlty as charged of violating the Attendance
Policy, because the Claimant demonstrated a clear pattern of being AWOL from work,

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because the alleged mitigating circumstances did not prevent the Claimant from calling in, and because the discipline imposed was proportionate to the serious nature of the Claimant's violations. The Organization contends that the instant claim should be sustained in its entirety because the Claimant was unable to call until after the starting time due to circumstances beyond his control, because the Claimant wasnot AWOL in that he did call in as soon as he ways able to, and because the Claimant complied with Rule 1.5 of the Schedule Agreement.
The parties being unable to resolve their dispute, this matter came before this Board.
This Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant vas guilty of not following the Carrier's attendance policy when he was absent without leave on ten separate occasions between January ?'5, 2011, and Mawh 18, 2011. All ten dates have been shown in the Carrier records as "AWOL - No call, No show."
Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we End its actions to have been unreasonable, arbitrary, or capricious. t

The record reveals that the Claimant had attendance problems in the past and that

in April of 2010, the Claimant signed a waiver document containing a "final warning."

That document includes the following language:

In accordance with Step #4 of the Discipline Progression contained in the

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Attendance Policy for attendance-related offenses, this vniU constitute a "Final Warning" far you to directly maWy your heretofore unacceptable habits as they apply to your attendance at work. Another proven offense committed within a 3-month period could result in your diaati.ssal from service. Conversely, Z years of active services with a discipline-free record will allow you to revert to Step #I of tire Discipline Progression. You are hereby instructed to review the MOCR Attendance Policy and the applicable rules from the MBGR Code of Conduct as they apply to your attendance.

Given that previous history, this Board cannot find that the Carrier acted

unreasonably, arbitrarily, or capriciously when it terminated the aaimaat after ten

AWCLs in less than a two-month period after signing the waiver containing the waming.

Therefore, the claim must be denied.

Ate:

The claim is denied.

P Wk R.-YERS
1l~mber

CARRIER MEMBER

ORGAMZATION MEMBER

DATED: ~G' ft ~,-,

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