NATIONAL RAILROAD PASSENGER CORPORATION'(AMTRAK)

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
                                              *


Public Law Board No.. 2406 was established pursuant to the provisions of Section 3, Second (Public Law 89-456) of the Railway Labor Act and the applicable rules of the National Mediation Board.
 The parties, the National Railroad Passenger Corporation (Amtrak, Hereinafter the Carrier) and the Brotherhood of Maintenance of Way Employes(hereinafter the Organization), are duly constituted carrier and labor organization representatives as those term s.are-defined in Sections 1 and 3 of the Railway Labor Act..
 After hearing and upon the record, this Board finds that it has jurisdiction to resolve the following claim:

            "The Carrier violated the Rules Agreement, effective- May 19, 1976, as amended, particularly Rule 73 of the Rules Agreement, when it' assessed discipline of dismissal on Camp Overseer, Marvin Brown, effective-October 4, 1979.


          . The dismissal was excessive, arbitrary and

            capricious in light of the circumstances

            introduced at the trial.


            Claimant Brown's record be cleared of the charges brought against him on September 14, 1979, relative to the incident which occurred on September 7, 1979.


            Claimant Brown be restored to service with seniority and all other rights unimpaired and be compensated for wage loss sustained."

                - P.L. Bd No. 2406

                                              Case/.Award No.~ 14 .


                                              Page Two


Prior to his dismissal the Claimant held the position of Camp Overseer, Track Laying System Gang, New-London,-CT. By letter dated September 14, 1979, he was notified to attend a trial in connection with the following charge:

            "Unauthorized use of Company vehicle, bus number 3491, and your involvement in accident while driving bus number, 3491 without authority on Friday, September 7, 1979 a.t. approximately 7:10 p.m- in the vicinity of New London, CT. Train Station."


The trial was held-on September 25, 1979 and the Claimant was found guilty. The Claimant received' notice of his dismissal on October 11, 1979 by letter dated. October 4, 1979. The organization alleges a violation- of Rule 73 on the ground that the Carrier failed to give timely written notice of the discipline.

      The: Claimant appealed the discipline on October 12, 1979 in a

letter to the Assistant Chief Engineer-Track. - The- appeal hearing was
 held on October 16, 1979-and the charges were sustained. The Organiza
 tion again appealed on- November 9, 1979, in a letter to the Director of
 Labor Relations. The appeal hearing was held on December 17, 1979 and
 the appeal was denied. -

      Two questions are presented:


            (1y Did the Carrier violate Rule 73 of the

            current Rules Agreement by failing to

            follow the time limitation for written

            notice of discipline?; and,

            (2y Was the Carrier's dismissal of the Claim

            ant an abuse of its managerial prerogative

            in light of extenuating circumstances?

                                              P.L. Bd. No. 2406 Case/Award No. 14


' Page Three

      The procedural argument of timeliness of notice lacks merit.

Rule 73 specifies that written notice of discipline shall be given .
 "within fifteen (15) days of the conclusion of such trial." The
 Notice of Discipline, dated October 4, 1979, was sent by certified
 mail on October 9, 1979. The Claimant received it on October 11,
 1979. Thus, notice was sent on the fourteenth (14th) day and re
 ceived on the sixteenth (16th) day after the trial. The practice
 both on the property and enunciated in numerous-adjustment board
 decisions is that the timeliness for issuance of a discipline notice
 is determined_by the date that notice is sent, not the date on which
 it is received: Third Division Award 13219 (Coburn) illustrates
 the principle:

            "The rule does not make the Carrier an insurer nor can it reasonably be-read to mean that a decision is not "rendered" until it is received


            This. Line of authority holds, in effect, that notice of the-decision must be dispatched within the time limit in such manner as may reasonably be relied on to actually get the notice to the employee-, and_that prima facia evidence of compliance with the rule stems from the date the notice is sent, not from the date it is received."


The Organization also made an- allegation that the investigating officer deprived the Claimant. of a fair hearing by attempting to end. the hearing without giving the Claimant an opportunity to question a witness, and present pertinent data. The record does not beat out the allegation. The Claimant was afforded a full and fair opportunity to present his case. After doing so, both the Claimant and his representative had no criticism of the manner in which the trial had
                                              P.L. Bd. NO. 2406 Case/award-, Na. 14·:


                                              Page Four


been conducted. The organization has not shown that the Claimant's rights were denied, or that he was. in any way prejudiced during the course of his trial.

 Turning to the merits, this Board finds the dismissal was excessive in view df mitigating circumstances. The. Claimant should. be reinstated but without back pay.

 The record shows that on September 7, 1979, the Claimant stayed
 on his assignment at New London after his tour had ended.- A genera-
 tor, the source of electrial power for the camp, malfunctioned, and the
 Claimant remained at the lob site after his assigned hours while repairs
 were being made by a. mechanic. The problem with the_generator neces
 sitated the use of an auxilary generator attached to a commissary car
 so the car had. to be- opened When repairs reached the point where
 the auxilary generator could. be turned off, the Claimant readied him
 self to leave-

 The Claimant was located at Midway Camp, CT_ and was returning at the end of his work week to his home in Philadelphia, PA. The Claimant found himself in. an unfortunate situation.. He needed to travel from Midway Camp to the New London Railway Station, a distance of approximately five (5) miles. A11 personnel had.left the camp earlier, however,. bus 349L was at the camp. The Claimant, after a futile attempt to get authorization because no one was in the TLS office at Providence, R.I. when he called, decided to use bus 3491 to get to New London. This was a grave error in judgment.
                                              P.L. Bd. No. 2406

                                              Case,Awara No. 14

                                              Page Five


While the Claimant's duties did occasionally require him to use Carrier vehicles, the Claimant did not have a valid driver's license. His decision to use the bus. was unquestionably a bad one. It became obvious just how. bad that decision was when the Claimant's bus struck an illegally parked car while he was turning into the New London Station.
 The lack of discretion on .the Claimant's part clearly warranted discipline. But dismissal in this case is out of proportion to the offense. Under different circumstances the Claimant's decision may have been laudable. His attending to duty beyond his required tour and his delivering transportation for the next arriving crew may have been praiseworthy save for the disabilities the Claimant had and suffered. from.
 But the Claimant's decision was a. bad one.. The only question is how severely should he-be disciplined. The general rule, of course, is that the imposition of discipline is a managerial prerogative and. the Board should not substitute its judgment for' the Carrier's. The severity of the discipline must, however, be reasonably related to the gravity of the offense. Absent serious violations on an employee's work record, disciplinary actions should, if possible, be taken to educate rather than punish the employee. In this instance, alt=egh the employee has many previous, and serious, violations on his work record, due to the particular circumstances surrounding the offense in this case, the Claimant should be given another chance. The Claimant should be reinstated but without back pay.
                                        P.L. Bd. No. 2406 Case/Award No.~14


                                        Page` SiX'


AWARD:

          Claim sustained.


R. Radke, Carries Member E LaRue, Organization Member

    Richard R_ Kasher, Chairman and Neutral Member


August 31, 1981
 ??iiladelphia PA-