BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - HIT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY




STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:








FINDINGS:
Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 The facts indicate that on May 14, 20101 Claimant was dismissed purrsuant to the provisions of Letter of Understanding dated July 13, 1976, (amended January 1, 19134) for being absent without proper authority for more than five consecutive work days beginning May 3, 2010 and continuing. The Organization protested the Carrier's action and pursuant to Rule 13(at



Appendix No. I I it requested a formal Investigation. The Investigation was convened on June 18, 2010, concerning in pertinent part the following charge:

      "...for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged absence from work for more than five (5) consecutive work days without the proper authority beginning May 3, 20111 and continuing.


      This investigation will determine possible violation of MOWOR 1.13 Reporting and Complying with Instructions and MOWUR 1.15 Duty - Reporting or Absence.


      You are ineligible for Alternative Handling."


On July 9, 2010, Claimant was notified that he had been found guilty as charged and his dismissal remained intact.

 It is the Organization's position that the Carrier erred in dismissing the Claimant. It argued that the Claimant was denied a fair and impartial Hearing because it was held in absentia, It asserted that it requested the Investigation moved from Fresno, California, to Flagstaff, Arizona, because it would be an immense hardship upon the Claimant to attend as he would have five young children in tow. It pointed cut that the difference between the two locations and the Claimant's home resulted in a round trip journey of 1500 miles versus 300 miles. It argued that request was summarily denied and because of that Claimant was not able to attend the Hearing which was then held absentia. It additionally argued there were other procedural errors and on that basis alone the discipline should be set aside.

 On the merits the Organization argued that the facts substantiate that the Claimant called his supervising Roadmaster, P. I-Ieusler on May 2, 2010, to inform him that due to a family emergency he would not be at work on May 3rd. The family emergency was due to the arrest of Claimant's wife and eldest daughter who were incarcerated which forced the Claimant into a role of` primary care giver for his other five children ranging in ages 5 to 12. According to the Oranization the Claimant did the only thing he could do and that urns stay home with his children as he had no other family support system. It also argued that when the Claimant realized that his seniority was in jeopardy he contacted the Organization which in turn filed a request for a Leave of Absence and/car Hardship Transfer (to allow him to work a jab closer to home). It argued there was no reason why the instant request could not have been granted. It concluded by requesting that the dismissal be rescinded and the claim be sustained as presented.

      It is the poition of the Carrier that Claimant was absent without authority fear more than

five days in violation of Appendix I I a Letter of Understanding dated July 13, 1976, and
 according try the Carrier, it provided sufficient evidence during the Investigation to support its
                                  P. L.B. No. ?048

                                  Award No. 51, Case No. 51

                                  Page 3


charges against the Claimant. It argued that the record substantiates that the Claimant called in May 2, 2(110, to tell his superior that he could not come tea work because of a family emergency; however, he was informed at that point that his absence would not be excused. His Raadmastcr P. Heusler was explicit when he told the Claimant during the call that due tea his numerous absences he would not be granted authority to be absent can May 3, 2(110, and following that initial call Claimant did neat show fear work and he did not keep the Carrier apprised of his situation as to when he would return to work. It further argued that the Carrier did not violate the Claimant's rights when it would neat change the location of the Hearing and held the Investigation in absentia as it had previously allowed a postponement giving the Claimant an additional two weeks tea arrange fear attendance. It asserted it had no further obligation to provide another postponement as it is well established that the Carrier does not have to postpone Hearings when the charged employee is in jail thus it is reasonable to conclude it has no obligation tea postpone a I-fearing when a charged employee's wife is in jail. It closed by stating that the discipline was reasonable and it asked that it not be disturbed.

 The Board thoroughly reviewed the transcript and the record of evidence and has determined that the dies Agreement allows for the Carrier tea exercise discipline prior tea a formal Investigation being held. In this instance discipline was exercised and the Organization requested a formal Investigation pursuant tea Rule l3(a) the Discipline Rule and Appendix No. I I which was convened in accordance with those Rules.

 The Organization disputed the fairness oaf the Hearing can the grounds that the Carrier would not change its location from Fresno, California, tea Flagstaff, Arizona, which prevented the Claimant's attendance as it placed an unnecessary burden upon him. It further argued that error was compounded by the fact that the Investigation was then held in absentia. The Carrier countered by arguing that it granted one postponement and it was neat required to grant a second postponement because the C'laimant's wife was incarcerated car a change in location. The Carrier is correct when it argued that it is not required to grant a postponement when a charged employee is incarcerated, but the request in this instance was because the Claimant had no cane tea care fear his children account of his spouse's unavailability. The Organization requested a charge in venue tea accommodate his attendance at the Hearing as he was acting as the primary care giver tar five children less than 12 years of age. It argued that the change would have allowed his attendance and because that change was neat made the Claimant was unable, tea attend. On the surface, that argument of equitable treatment is neat without some merit, however, in this instance the facts indicate that the parties agreed to a postponement which changed the Hearing from June 3 tea June 1 8, 2010, giving the Claimant an additional two weeks tea arrange to attend his Hearing. Examination of Rule 13 - Discipline, which controls the procedural handling of Investigations reveals there is no requirement tea make a change in venue. Therefore, the Hoard has determined that when that request was denied the Carrier was within its rights and it did neat violate the Claimant's right tea a fair and impartial Hearing, in this instance, when it was held in absentia.
                                  P.L.B. No. ?0:t8

                                  Award No. 1, Case No. 51

                                  Page 4


With respect to any other procedural arguments there, is no showing that the Claimant was denied his Agreement "due process" rights.

      I-laving determined that there were no procedural violations in the handling of this case

the Board turns its attention tea the merits. The facts indicate that the Claimant called his
 immediate supervisor, Roadmaster P. Heusler on May 2. 2010? and requested time off account of
 a family emergency which was denied. At the Hearing Heusler testified on pages 7 - 8 of the
 Transcript as follows:

        "Q At any time during the 6 days did Mr. lJosteen attempt to contact you, to explain his whereabouts".'


      A Mr. Hosteen contacted me late in the evening; of May 2, informing me that

      he would not be into work on Monday; based on previous habitual absenteeism

      he was not I informed him that he was not authorized in this work, he said

      he didn't have any choice, that he had a family emergency, and at that time 1,

      I told him I reiterated that he was not, still not authorized based on his poor

      attendance in the past and our previous counseling sessions, however to keep

      me informed, acid, and apprised of the situation and let me know when he would

      be arriving,, that was the last time I spoke with Mr. Hosteen in the month of


        Q Okay, so on May 2, you, you spoke of Mr. Hosteen and told him he was not authorized to miss work, correct'


      A That is correct.


        Q Okay, but on May 3, he did not show up and you said he was going for more than, well 6 consecutive working days, correct?


        A Yes,, yes he still has not returned to work for more, or returned to work, however, on May 17 1 believe it was, he was formally dismissed from the company for absent without leave." (Underlining Board's emphasis)


Despite the excellent representation afforded try the Organization to the Claimant it could not
 overcome the fact that the. Claimant was told lie was not granted time off. Review of the above
 testimony, also indicates that Supervisor l leusler recognized that the Claimant was not going to
 show up for work an May 3rd and some additional time to follow as he sifcally instructed
 the Claimant try keep hire apprised of his situation. From the date of that conversation 15 days
 passed before the Carrier dismissed the Claimant and during that time the Claimant did not
                                  P.L.1i. No. 7048

                                  Award No. 51, Case No. 51

                                  Page 5


advise the Carrier as to what was going on and when he intended to return to service. near did he request a formal Leave of Absence. The Board finds that all of the Claimant's absences beginning May 3, 2010, and continuing until his dismissal were not authorized. It is clear that substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.

      The only issue remaining is whether the discipline assessed was appropriate. At the time

of the incident the Claimant had 30 plus years of service with a discipline record that included a
 demerit notation in 1 990. a formal reprimand in 2004 and a record 30 day suspension in
 November, 2009, for failure to report for duty on two dates. That record further verifies that
 during those 30 plus years Claimant had cane minor on the job injury with no lass of time. The
 evidence also substantiates that the Claimant had an extremely unusual reason far requesting
 time aft' work, namely that he was entrusted with the sole care of five young children due to the
 unexpected incarceration of his spouse. The Board does neat excuse the Claimant's subsequent
 actions and we admonish him for not keeping the Carrier advised as to his situation, but despite
 that failure we recognize that because of the very unique circumstances of this dispute and a
 generally food work record there is reason for mitigation of the discipline on a non-precedential
 basis. Supervisor Heusler perhaps said it best when questioned about the Claimant's
 responsibility at the time of the incident to provide care for his children when he testified on
 page 15 of the Transcript as follos: "'That would definitely be the primary responsibility,
 that's what I would encourage." The Board finds and holds that the discipline was excessive
 and is reduced to a lengthy suspension which is progressive and corrective in nature and in
 accordance with the spirit of the Carrier's Policy for Employee Performance Accountability
 (PRPA) wherein under Paragraph (b) General Information it states in pertinent part:
 Circumstances surrounding a serious incident may reduce an employee's personal
 culpability." As previously stated because of the unique circumstances of this case the Claimant
 will to returned to service with seniority intact, all benefits unimpaired, but with no back pay and
 two level S Violations on his record. Claimant is forewarned that he needs to be careful to abide
 by all Carrier Rules anti Policy as he works to clear off that record saver the 12 months following
 reinstatement.

 Claim sustained in accordance with the Findings and the Carrier is directed tee make the Award effective on car before 30 days following the date the Award was signed by the parties.

          William R. filler, Chairman e l


Samantha Rogers, Carrier 'Wrnber David D. Tanner. Employee Member
 Award Date: ___,__ ___