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`-- AWARD NO. 466
_-- Case No. 500
PUBLIC LAW BOARD NO. 1582
PARTIES) THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
1. That the Carrier's decision to remove New Mexico Division
Trackman J. R. Torrez from service was unjust.
2. That the Carrier now reinstate Claimant Torrez with seniority,
vacation, all benefit rights unimpaired and pay for all wage loss
as a result of investigation held 8:30 a.m., August 24, 1989 con
tinuing forward and/or otherwise made whole, because the Carrier
did not introduce substantial, creditable evidence that proved
that the Claimant violated the rules enumerated in their decision,
and even if Claimant violated the rules-.enumerated in the decision,
permenent removal from service is extreme and harsh discipline under
the circumstances.
FINDINGS: This Public Law Board No. 1582 finds that the parties
herein are Carrier and Employee within the meaning
of
the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend a. formal,investigation in Belen, New Mexico on April 18, 1989 concerning a report
alledging that he was absent without authority commencing January
16, 1989 and all subsequent dates thereafter, and to determine the
facts and place the responsibility, if any, involving possible violation of Rule 1004 of the Safety and General Rules for All Employees
effective April 1, 1989.
The investigation was postponed and was held on August 24, 1989.
Pursuant to the investigation the claimant was found guilty and was
dismissed from the service of the Carrier.
The transcript contains 20 pages of testimony. The Board has examined
that testimony and the exhibits submitted by the parties.
C. B. Stone, Administrative Coordinator for the Carrier, testified
that his duties were to oversee all maintenance.of way positions
and assignments. He testified that the claimant commenced a series
of leaves of absence back in 1985. Ile also stated that a medical -.
leave of absence in excess of ten calendar days was required to be
covered by a leave of absence.
Mr. Stone further testified that the claimant had obtained three
leaves of absence up to January 15, 1989. He then testified that
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Award No. 466
Page 2
the claimant did not request a leave of absence for any time after
January 15, 1989. He further testified the claimant did not return
to work on January 16, 1989 or thereafter.
The claimant testified he did not return to work after January 15,
1989 and did not request another leave of absence on his own but
just sent what the doctor gave him. He testified that he thought
the last doctor's statement was sent on February 2, 1989.
Under the circumstances there is no question but that the claimant
was in violation of the rules. The only issue before the Board is
whether permanent dismissal is too severe. Under the circumstances
the Board finds that permanent dismissal is harsh, arbitrary and
unjust.
The Carrier is directed to reinstate the claimant with seniority
and all other rights unimpaired but without pay for time lost.
AWARD: Claim sustained as per above.
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
Preston oore, Chairman
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