Public Law Board No. 3038 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:
On March 31, 1981 EWB-B Machine Operator Kevin Chappell, hereinafter the Claimant, was issued a notice of investigation. The notice charged the Claimant with being absent from work on October 31, November 3, December 19, 1980, January 9, February 3, February 9, February 10, February 18, and March 23, 1981. The notice also alleged that the Claimant had falsified documentation to excuse his absence of Monday, March 23, 1981.
In accordance with this notice of investigation the Carrier conducted a hearing on April 28, 1981. The~Claimant attended the hearing and was represented by the organization. At this hearing the Claimant was afforded an opportunity to present witnesses and to testify in his own behalf regarding the charges.
Subsequent to the conclusion of the investigation, the Carrier concluded that the Claimant was guilty of the list of charges and assessed a ten day disciplinary suspension for his alleged absences and a thirty disciplinary suspension for his allegedly falsifying documentation excusing the absence of March 23, 1981.
PLB NO. 3038The Organization contends that the Claimant was not afforded a fair and impartial trial. The Organization argues that the Carrier improperly combined the two charges in one investigation.
The Organization also contends that the Claimant's removal from service, in face of known circumstances, was unjustified and an abuse of managerial prerogative.
The Organization also contends that the charges, as presented, were ambiguous and that the Carrier did not establish that the Claimant was absent on the days in question. The Organization also contends that the charges were unproven. In these circumstances, the Organization contends that the Carrier has failed to meet its burden of proof and therefore the disciplines imposed were unwarranted.
The Organization therefore requests that the Claimant's record be cleared of the charges and that he be made whole for all lost pay and benefits as a result of the improper imposition of discipline.
PLB NO. 3038first address and dispose of the Organization's objection to the Carrier's combining of two
charges in a single investigation. There is no that the charges were not sufficiently related.
Carrier properly proceeded in a single investigaaddress these multiple charges. It is not uncommon
investigation. . Additionally, there Claimant was unprepared to address that the notice of investigation was
Turning first to the contention that the Claimant violated the absenteeism agreement, the Claimant challenged the allegation that he was absent on all of the days specified in the notice. The Carrier's Conducting Officer asked the Claimant which days he contended he was not absent. The Claimant requested that his personnel files be "pulled" because he could not remember- with specificity
the charges in a single
is no showing that the
any of the charges or
not sufficiently speci
notice. Accordingly,
the claims should be
which days he was in attendance. As a result of this statement, the organization representative requested the Carrier to produce documentation of the days in question which would establish that the Claimant was either on or off duty or in or not in attendance. The Carrier's Conducting Officer committed, at page four of the transcript, to produce the necessary personnel records and to make that information part of the transcript. A review of the totality of the transcript and evidence submitted to this Board establishes that the Carrier never produced any documentation regarding the Claimant's alleged absences on the days in question. The Board recognizes that the Claimant did admit, in part, that he was absent on some of the days in question, or on one of the days in question. The record is not sufficiently clear. The Carrier has produced no further evidence to establish how many days the Claimant was allegedly absent improperly.
It is clear that the Carrier has failed to meet its burden of proof in the charge that the Claimant violated the Absenteeism Agreement. As the record stands and as it was reviewed by Carrier Officers prior to determining to impose discipline there was a showing that the Claimant was allegedly absent, presumably without legitimate cause (as that term is used in the Absenteeism Agreement), on nine days.
Yet the Carrier has not specifically proven absence on any of those days. This Board cannot presume that the Carrier reviewing representatives would have disciplined the Claimant if it had been shown that he was only absent on one, two or maybe three of the days in question. Without proof in the record of when the Claimant was absent or if he was absent, this Board must conclude that the Carrier could not properly discipline the Claimant for violation of the Absenteeism Agreement. Accordingly, the claim will be sustained and the ten-day disciplinary suspension assessed the Claimant shall be removed from the record and he shall be made whole for the loss of pay associated with that ten calendar day suspension..
The Carrier has also charged the Claimant with providing false documentation excusing his absence of March 23, 1981. Again, the Carrier has relied upon evidence which is not fully supported by probative testimony.- The Claimant has contended that the return to work certificate that he received from Doctor Anderson was signed by a nurse in Doctor Anderson's office. The Carrier has established that Doctor Anderson did not see the Claimant on the day in question. However, that finding begs the issue. There is no showing that the Claimant falsified the documentation involved. In fact, one would presume that the Claimant was
not the author of the alleged falsified note as not only was the word "clinic" misspelled but the Claimant's first name was spelled "Keven" as opposed to "Kevin". It is not likely that the Claimant misspelled his own name in the drafting of the note. Additionally, there is evidence in the record that the nurse or the secretary who was involved in the incident did not give her name to Carrier personnel because she did not want "to get involved". There is no showing that the nurse or secretary in Doctor Anderson's office was not authorized to issue a note to the Claimant returning him to service. Additionally, although the Carrier has proven that a Doctor Anderson did not sign the note, that fact does not etablish that the Claimant provided false documentation to the Carrier. Accordingly, the Board finds that the Carrier improperly disciplined the Claimant by imposing a thirty calendar day suspension and that' discipline shall be removed from the Claimant's record. The Claimant should also be made whole for all lost pay and benefits associated with the discipline and his seniority shall be restored for the two suspensions which amounted to forty days. PLB NO. 3038