The Burlington Northern Santa Fe Railway Company ("Carrier") violated the. current effective agreement between the Carrier and the American Train Dispatchers Association ("Organization"), including but not limited to Article 24(b) in particular when on June 9, ?008, it arbitrarily disciplined train dispatcher Dethmers, assessing hire a thirty (30) clay record suspension, with further conditions indicated below, without due cause and absent any demonstrated rules violation.
The Carrier shall now overturn this decision to discipline and remove the mark from his personal record, Further, it is now incumbent upon the Carrier to make him whole for any and all time lost, including wages not paid as a result of attendance at the disciplinary hearing.
That the Carrier and Employees involved in the dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved June 21, 1934;
T~ G. Dethrrters ("Claimant'") leas been a Dispatcher with the Carrier since March 2001 and, at the time of the events leading to this arbitration, he waassigned to work as a train dispatcher at the Carrier's Ft. Worth, Texas, Network Operations Center.
Attached medical review trust be completed by your physician and submitted to BNSI~ Medical Department as indicated on the form no later than 5:00 p.m. June 20, 2008. You will remain in service during this medical review period.
The essential facts in this case are undisputed. The Claimant called in at approximately 10:fl5 p.m. on Thursday, April 17, 2(148, and reported that he was sick and unable to report for his assigned (3:Cl0 p.m. to 1 l:(l0 p.m.) shift on Friday, April 18. Accordingly, the Claimant did not report for work on April 18. However, at approximately 7:0(l pm. on April 18, he was observed attending the Fort Worth Arts Festival in downtown Fort Worth by the Carrier's Manager of Dispatcher Scheduling and the General Superintendent of Transport,.-ition.
During the investigation, the Claimant insisted that he was suffering from irritable bowel syndrome and back pain on the night of April 17 and that he had called in to the scheduler that night in order to allow the Carrier sufficient time to obtain a replacement worker for the following day. He also insisted that he had been seen by his doctor for those conditions prior to the beginning of his shift on April 18. The Claimant readily acknowledged that he and a co-worker had visited the Fort Worth Arts Festival where he spoke to the Manager of Dispatcher Scheduling and the General Superintendent of Transportation.
The Organization presented documentary evidence that the Claimant had been seen by his doctor on April 18 for a medical condition that prevented him from working that evening. In addition, the Organization asserted that the Claimant took a prescription medication that day that would likely affect his judgment and, therefore, render him unfit for work that night. At the same time, the Organization asserted that the Claimant's doctor had verbally recommended to hire that he walk and stretch to alleviate his back pair, and the Claimant's short visit to the Arts festival was in compliance with his doctor's orders.
from work. Therefore, the Carrier maintained that severe disciplinary action was warranted. In support of its position, the Carrier offered Public Law Board 6829 Award 8, in which that Board examined a similar case of a dispatcher who was terminated for
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In the above award, the Board made it clear that the claimant in PLB 6829, Award 8, had attended three separate golf tournament events after calling in sick. In addition, the claimant had completed a Sick Leave Form which indicated he was sick on one occasion with a migraine that necessitated lied rest. However, the Board concluded that the claimant's act of playing golf at a tournament was not consistent with a person needing bed rest and, therefore, ruled that he had been laying off under false pretenses. In the instant case however, this Board finds no persuasive evidence that the Claimant had falsified his reason for calling in sick or that he was not complying with his doctor's orders to walk and stretch when he attended the Arts Festival.
The Carrier also submitted Public Law Board 6829, Award C, in which the Board examined another case involving a Dispatcher who was terminated for misrepresenting; the facts when he called in sick and then proceeded to play golf: In that award, the Board had this to say:
'Therefore, based on the evidence in that case, the Board concluded that the claimant's actions were not consistent with a person who was suffering with a lead back and the claim was denied. However, no such persuasive evidence was submitted in the instant
case to support a finding that this Claimant's attendance at the Arts Festival were neat consistent with his physician's verbal order to walk and stretch to alleviate his back pain.
In a disciplinary case, the Carrier is the moving partty and therefore, bears the burden of supplying evidence to support the disciplinary action imposed. In National Railroad Adjustment Hoard Second Division Award 8432, the Hoard had this to say concerning the quantum of proof.
There is no doubt that the Carrier had a legitimate reason for suspecting that the Claimant had falsified his reason for laying off sick on April 18, 20118, and it was reasonable far the Carrier to investigate further. The evidence shows that the Claimant voluntarily supplied medical documentation and prescription receipts which verified he had been treated for back pain, irritable bowel, and a neck rash on April 18. In addition, after examining him, his doctor instructed him to walk and stretch to alleviate his back pain. In the Disciplinary Letter which was issued to the Claimant on .tune 9, 2008, the Carrier now directed the Claimant to submit additional medical documentation as follows: Attached medical review must be completed key your physician and submitted to HNSF ?Medical Department as indicated on the form no later than 5:00 p.m., June ;'0, ?008. You will remain in service during this medical review period.
Frequently, there are many unanswered questions concerning the medical issues involved in a case such as the one before this Hoard. However, such questions can only be answered by the medical professionals and not laymen. Therefore, this Hoard agrees that it was not unreasonable in the instant case to direct the Claimant to supply additional documentation if a legitimate question existed concerning his medical condition or the validity of his explanation for his absence. However, the fact that the Carrier included
investigation, leads to the inescapable conclusion that the disciplinary action was assessed before the investigation was completed.
This Board agrees that sick leave abuse is very serious and when proven, warrants severe disciplinary action, up to anti including termination. However, for the reasons outlined above, this Board finds insufficient evidence to support a'nding that the Disciplinary Letter dated .Tune 9, 2(3138, was issued to the Claimant for just cause.
The claim is sustained. The Disciplinary Letter dated June 9, 2(308, shall be removed from the Claimant's tile arid shall not be referenced in any other matter. Further, since the claim has been sustained, it is not necessary for this Board to address the other technical arguments that were advanced by the Organization.