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 terms 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:
Mr. Paul DeSantis, hereinafter the Claimant, was employed as a Carpenter in Philadelphia, Pennsylvania at the time of his dismissal from service by the Carrier on February 3, 1981.
On December 19, 1980 the Carrier notified the Claimant that he was to appear for an investigation regarding charges that he had been absent without authorization from work on December 8, 10, 15, 17 and 18, 1980.
These charges were addressed in an investigation held on January 29, 1981. The Claimant appeared at the investiga= tion and was represented by a duly authorized member of the Organization. The Claimant was afforded the opportunity to present witnesses and testify in his own behalf and to cross-examine the witness produced by the Carrier.
The Carrier determined after review of the record that the Claimant had violated the Absenteeism Agreement and in accordance with the schedule of discipline provided in that agreement the Carrier dismissed the Claimant from service. The claim is now before this Board for adjudication.
Initially, the Carrier contends that the Claimant did not timely appeal his discipline. The Carrier's contention is based upon the fact that the Claimant did not sign the letter which was presented to the Carrier challenging the imposition of discipline. The Carrier argues that when it received the unsigned letter that it gave the Claimant an opportunity to "perfect" his appeal by submitting a signed letter challenging the discipline. The Carrier points out that the Claimant never responded to this invitation and accordingly the Carrier contends that the appeal was never properly made under the Agreement's time limits.
In addressing the merits of the dispute, the Carrier contends that the Claimant's guilt regarding the alleged unauthorized absences was proven beyond doubt. The Carrier contends that the Claimant had not requested permission to be absent on the days charged and that the record supports the fact that the Claimant had been absent without authority.
The Carrier, in responding to the Organization's claim that it committed a procedural defect in the appeal processing, contends that the fact that it mistakenly typed "Rule 14" as opposed to "Rule 74" is not a fatal procedural defect. The Carrier points out that when the error was
discovered it was corrected in a subsequent piece of correspondence and that, in any event, the Claimant was not prejudiced by this clerical error.
In these circumstances, the Carrier contends that the discipline imposed was based upon proven charges and that the quantum of discipline was not disproportionate to the offense or inconsistent with the discipline schedule contained in the Absenteeism Agreement. Accordingly, the Carrier requests that the claim be denied.
The organization contends that the Carrier's failure to grant an appeal hearing based upon the fact that the Claimant did not sign his appeal letter is a procedural defect which should result in the sustaining of the claim. The Organization contends that the Claimant's appeal letter was clear and understandable and that it bore a typed signature. The organization argues that there is no requirement in the rules that an appeal letter be personally signed by the Claimant. Accordingly, the Organization contends that the Claimant complied with the time limits of the Agreement and should have been granted an appeal hearing.
points out that the record evidence establishes that the Claimant testified that he called in on the dates in question and reported off. The organization argues that the Carrier was unable to refute the Claimant's testimony that he and/or members of his family called-in on the dates in question to report that the Claimant would not be available for work. The Organization also points to evidence in the record which establishes that the Claimant was suffering from a stiff neck during the days in question and this prohibited his appearing for work.
the Claimant's alleged failure to properly appeal the decision of dismissal. The Organization points out that Rule 14 has no relationship to the appeal process and therefore the Carrier committed a procedural error which should result in sustaining of the claim.
The Organization requests that the Claimant be restored to service with seniority unimpaired and be paid for all wage loss and lost benefits.
The Board is unimpressed with either the procedural objections raised by the Carrier or the Organization. Clearly, the Carrier's mistake in its letter of April 14, 1981, when it noted. the wrong rule, did not act to the Claimant's detriment. The Carrier corrected this clerical error as soon as it was discovered (10 days later), and there is no showing that the Claimant was not put on proper notice regarding the Carrier's position. In the same vein, the Carrier was not prejudiced when it received the Claimant's appeal letter which did not bear a written signature. The letter put the Carrier on notice regarding the nature of the Claimant's position and appeal and therefore, in this Board's view, the Carrier cannot claim that the appeal was untimely filed. We recognize that one of the steps in the appeal -process may have been skipped as the result of the Carrier's not granting the Claimant the appeal hearing on the basis of this alleged unsigned appeal. However, the totality of the record indicates that the claim was sufficiently discussed below and that the alleged-procedural errors did not prejudice either party in terms of the requirements and intentions of the appeal process in the parties' grievance procedure. Accordingly, this Board will review the merits of the claim. PLB NO. 2406
who are absent without legitimate a twelve month period. The facts that when the Claimant was charged
for the absences in the instant case that he had reached the third or last step in the process. The evidence of record also establishes that the Carrier had no record that the Claimant or a member of his family had called him off sick
no such calls
Structures,
Claimant called the evidence of record