The Organization argued that the Claimant had been legitimately absent with the Carrier's authorization on the occasions in question and that the Carrier therefore, did not have just cause to issue to her the Formal reprimand dated March 12, 2008. In support of its position, the Organization submitted a number of Public Law Board cases for the Board's review. In PLB 7240, Award Number 68, the Board sustained the Claim in that particular case finding that:

_. . . The use of sick leave for a documented bona fide illness that reasonably precludes the dispatcher from reporting far duty cannot precipitate the imposition of discipline unless other aggravating circumstances exist ...

. . . If an employee is actually debilitated by illness and follows reporting off procedures established by the Carrier, the Carrier may not penalize the employee for a bona fide medical circumstance necessitating the use of sick leave . . .

. . . At issue in the instant case is, can the legitimate use of sick leave lie curtailed through discipline? The Board finds the answer to that question to lie no. . ."

The Organization also provided National Railroad Adjustment Board Third Division Award No. 23555 for the Board's reference. In sustaining that claim, the Board found:

Division Award 23555 provided adequate proof to the Board that the Claimant was legitimately sick during the period in question and the claim was therefore sustained. At the same time however, the Board made it clear that the Carrier has a right to expect employees to report to work on a regular basis,

unsatisfactory attendance. In sustaining that claim, the Board held as follows. -

There is no evidence that Claimant's layoffs included pattern layoffs or sporadic

absences.

Unlike the absences of the Claimant in the above case, the instant case involves this Claimant°s pattern of laying off for one or two days in conjunction with her rest days. Therefore, l'LB 7155, Award No. 17 is also clearly distinguishable from the instant case.

The Claimant in the instant case was counseled regarding her attendance on February 9, 2007, and it was noted at that time that she had been absent 11.38 days in the previous

her attendance, and it was noted in that letter that she had been absent 13.38 days in the previous rolling 12 month period. Finally, when the Carrier issued the March 12, 2008 Letter of Formal Reprimand to the Claimant, her record indicated that she had been absent from work 1SVz days during the previous rolling 12 month period. In view of the

evidence, it is clear that the Carrier's coaching and counseling

. . . The nub of the dispute centers upon the emphasis and significance that should be ascribed to the C'laimant's absences, not only in 19qbut also over his entire work record.

The Board finds some merit in the Organizations contention that bona ode illness is not a valid basis fur assessing discipline for absenteeism. However, it is necessary to guard against too simplistic a reply to this issue. Before determining whether the absences in question are excessive, it is necessary to review the position the involved employee occupies. The harrier is properly entitled to hold that a Dispatcher should be kept to a higher standard than a clerk typist. Obviously, all employees owe a high degree of fidelity to the demands ref their positions. :Nevertheless, the importance of a Dispatcher to the efficient running of a railroad and his continued absences may properly be viewed in a somewhat mare demanding and critical manner than an employee occupying a less responsible position.

The Carrier is also properly entitled to view judiciously the entire attendance record of the affected employees. Even though the absence of the employee may be due to a bona ode illness beyond the control of an employee, there is philosophical underpinning for the assessment of discipline, The rnployee-

a framework that demands the Employer

compensate employee with a fair rate for a fair day's work and the Employee obligates himself to render a fair day's work for his compensation.

When either one of the parties to this relationship fails to meet his obligations thereunder, the relationship may be considered severed or terminated. This is the rationale drat allows an employer to review the totality of tire employee's attendance record and take corrective action even if part of the attendance record consists of absences caused by bona fide illnesses. (Emphasis added) This is not to say the Carrier does not have to exercise his review of the employee's attendance record judiciously and compassionately. Before the Carrier can discipline an employee for excess absenteeism when part of the absences were causes! by genuine illness, the Carrier must demonstrate it has not acted arbitrarily or precipitously

This Board agrees with the findings in the above-cited case. It is troubling to this Board that during the investigation, the Claimant in the instant case expressed her belief that 151a days of absence in a rolling year was not excessive, and she gave no indication that her attendance would not continue to deteriorate. The Claimant is an experienced employee with more than 10 years of service, and the evidence established that she knew, or should have known, of the requirement to be regular in attendance. Therefore, notwithstanding the vigorous arents on the Claimant's behalf, it cannot be said that the Carrier vas arbitrary or capricious when it required her to report for work regularly and on-time. Accordingly, the Board finds that the Carrier was justified in issuing to the Claimant the Letter of Formal Reprimand dated March 12, 2008. for her unsatisfactory

The Organization offered several technical arguments in support of its position. First, the Organization argued that the initial charge letter was not issued to the Claimant within the requisite five-day tithe limits as specified in Article 24(b) of the Agreement w==hich states, in pertinent part, as follows:

(b) INVESTIGATIONS.

A train dispatcher who is charged with an offense which, if proven, might result in his being disciplined, shall be notified in writing of the nature of the complaint against him within five (S) days from the date that the knowledge of the facts on which such complaint is based was received by tire Superintendent, and lie shall be given a fair and impartial investigation by the Superintendent or a. designated representative within five (S) days cal the date of such notice, . . . . {Emphasis added}

that the subject Notice may have been untimely. However, the evidence

The Claimant's last absence occurred on January 2q,

Award No. 13

not actually become aware of the Claimant's overall attendance deficiencies until the Carrier conducted its normal monthly attendance review on February 7, 2008. Therefore, the evidence clearly shows that the Notice of Investigation was issued one day following the day the Superintendant became award of the Claimant's excessive absences; which is well within the five-day time limit.

Next, the Organization argued that the Claimant was not afforded a fair and impartial hearing because Transportation Process Specialist, Dennis L. Mead served as the Hearing Officer and ultimately assessed the discipline upon her. As this Board has previously stated, an employee's right to a fair and impartial hearing is an absolute requirement before the Employer assesses discipline to an employee. At the same time, however, there is no showing that any provision of Article 24 or any other provision of the Collective Bargaining Agreement prohibits a member of management from performing more than one role during the disciplinary process. In the instant case, the Claimant was provided a full opportunity to explain her version of the facts during the investigation. In addition, there was no evidence to indicate that Mr. Mead was biased during the process or that he neglected to consider all of the evidence before reaching his decision. Therefore, this Board finds no evidence to support a conclusion that the Claimant was deprived of a fair and impartial hearing.

A third argument advanced by the Organization asserted that Transportation Specialist Mead, while serving as the Carrier's conducting officer at the investigation. conducted

However, regardless of how the Organization may view Mr. Mead's method of conducting the investigation, once again, tl-ds Board finds no evidence to show that he was not objective during the investigation or that he suppressed any relevant evidence or mitigating circumstances that could have proved the formal Reprimand was not warranted.

Finally, the Organization asserted that the Carrier had riot challenged positions presented by the Organization during floe handling of this dispute and that the Claim should therefore, be sustained. In support of its argument, the Organization submitted several

previous Board decisions which are summarized in

With respect to the three separate Claims, we note that the wording of the individual Claims and the following correspondence is the same for each. The Carrier, in its identically worded denial letters, substantially gave its reasons for rejecting the Claims. There is nothing in the record properly before us that refutes these material statements and assertions. It has been consistently held by the Board that when material statements are made by one party and not denied by the other party, so that the allegations stand unrebutted, the material statements are accepted as established fact. On that basis, we must deny these Claims.

that in Award 28459, the Organization had

janitorial work to an outside contractor. In that Award, the Board held that the Carrier had provided material statements during the dispute resolution process which adequately explained its reasons for denying the subject Claims and that the Organization had not rebutted the Carrier's material statements. Likewise in the instant case, by letter dated ,august 2., 2008, General Director Labor Relations, O. D. Wick had clearly provided in great detail the Carrier's reasons for denying the Organization's claim and had disputed the Organization's assertions and arguments on the Claimant's behalf. Therefore, this Board finds that at that point, the Carrier had clearly responded to all of the Organization's positions and had set out its final position to the Organization; at which time the case was fully developed and ready for submission to arbitration for final resolution..

a

In, its submission, the Organization requested a remedy that would make the Claimant whole for any and all lost time, including wages far ail tamp lust as a result of attendance at tire disciplinary hearing. (Emphasis added) However, Article 24 only provides for the repayment of lost wages minas interim earnings if the dispatcher is cleared of the charges, and it makes no provision for pay to a Claimant while attending ate investigation. Public. .Law Board No. 6519, Award No. 4, examined this same argument and had this to say.

The Board must lend that the only Article specifically written and applicable to the facts, is Article 24 pertaining to Discipline and denoting the provisions relevant to an investigation. `here is no language in Article 24 nravidin2 for compensation for attendance at an investigation. (Emphasis added) The Carrier painted out can property that there was no past practice. The facts indicate that the Claimant was charged and found guilty as a result of that investigation. Whatever the consequence pat` being censured and in addition, losing a day's wages, the parties have no language which provides compensation herein, and Articles 18 and ?tI do not apply°. Accordingly, the Board must deny the claim.

This Board finds that the Claimant's record of attendance accurately reflected excessive absenteeism and that the Letter of Formal Reprimand dated March 12, 2008 was issued for just cause. This Board also finds that the Organization's technical arguments should

is denied in its entirety.

Paul Chapdelaine

Chairman and Neutral Member

May , 2011