BROTHERHOOD ()F MAINTENANCE CAF WAY
 EMPLOYES DIVISION - HIT RAIL CONFERENCE
vs

 RNSF RAILWAY COMPANY




STATEMENT <>F CLAIM:










It INDINCS:
Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act as amended; and, that the Board hass jurisdiction aver 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 the Claimant marked off from work on June 23 and 26. _

 without direct approval of the Roadmaster and because of that the Carrier decided that a formal Investigation was necessary to determine whether or not the Claimant had violated Maintenance of Way Operating Rule 1. 15 and Engineering; Instructions Rule 22.6.1.

 On June 29, 2009, Claimant was directed to attend a formal Investigation on July 17, '1(109, concerning in pertinent part the following charge:
 P.L.B. No. 7048
 Award No. 53, Case No. 53
 Page 2

On August 13, 2009, Claimant was notified that he had been found guilty as charged and was issued a 10 Day Record Suspension and a probation period of cane year.

 Organization's position that the Carrier erred in its discipline as it did not meet its

 burden of proof and even assuming for the sake of argument that the Carrier did prove its case the discipline was not in accordance with its Policy for Employee Perormance Accountability (PEPA) and because of it requested the discipline /rescinded and the claim 1>e sustained as presented.

 It is the position of the Carrier the Claimant violated the Rules when he was tent from
 work can June 23 and 6, . It arms the Claimant was given counseling by his immediate
 Supervisor on June 24th regarding the first absence and a phone card with all available phone
 numbers contact, but still failed to call the Roadmaster to secure permission to lie off on .tune
 26th. It closed by asking that the discipline not be disturbed as it was clear that the Claimant was
 absent without proper authority.

 The Board has thoughly reviewed the transcript and record of evidence and determined that the; Investigation was held in compliance with Rule 13(a) the Discipline Rule and Appendix No. 11, therefore, tire claim will be resolved on its merits.

 Despite the skillful argument presented by the Organization in behalf of the Claimant the record substantiates that the Claimant did not secure and/or seek proper authority to be absent can June 23 and 26, 2(.1119. In the Carrier's letter of declination ref October 9, 20119, it reiterated that the Claimant was guilty of Maintenance of Way ( rating Rule 22.6.1 - Absenteeism and Layoff Policy which states:




      violations of these rules will result in scheduling a formal investigation and necessary disciplinary action being taken. If for some reason you need to be absent it will be necessary that you personally contact your Assistant Roadmaster or foreman to discuss the matter with that person. Leaving a voice mail message for the Roadmaster will not be considered contacting the proper authority."


Substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged

 'fhe only issue remaining is whether the discipline was appropriate. On pages 12 and 13 of the 'Transcript, Raudmaster A. Trevizo was questioned as to why if June 26th was the second alleged violation of the Absenteeism and Layoff Policy the Claimant was not issued a letter of reprimand rather than a formal Investigation. Mr. rrevi2,,o was questioned as follows:

      "Gary Marquart: Okay, also it says uh on the first violation you do the counseling, which you stated that you did on that Wednesday, is that correct?


      .Andrew Trevizo: Yes.


      Gary Marquart: Okay, on the second one, did you issue a formal letter or reprimand or anything.'


      Andrew Trevizo: I contacted my 0. E. who suggested we do the uh, the formal investigation because of such an egregious event in a matter of 2 days 3 days time that you know, it just, the, the, message was not received.


      Gary Marcluart: Okay, but he did call in these two times, to uh, supervisors that work with him, other people?


      Andrew Trevizo: Yes, he did calf. (Underlining Board's emphasis)


The Board understands the Carrier reasoning in this instance that because the second violation of Rule 22.6.1 occurred within three days of the first violation it felt the formal Investigation was appropriate as it would magnify the seriousness of the violation. We do neat disagree with that logic, however, Rule 22.6.1 states in pertinent part: "...2} Second violation will result in the form of a letter of reprimand, noting the rule violation placed on your file, perrsonal file,..". Because the aforementioned Rule is explicit the Board finds and holds that the l O-Day Record Suspension with a cane year probation period is rescinded and reduced to a formal reprimand to he placed on the Claimant's personal file. The Board her notes that even though Claimant
 P.L.B. No. 7048
 Award No. 53, Case No. 53
 Page 4

 called Supervisors on both dates he should have followed the counseling instructions of June 23rd and should be careful to adhere to instructions in the future.

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

 ----7 ) I? --~:>

 William lt. Miller. Chairman & Neutral Member

 Samantha Rogers~ Carrier ember

 Award Date:

 David D. Tanner, Employee Member