This Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employe within the meaning of the Railway Labor Act as amended; that this Board has jurisdiction over the parties and the subject matter of the dispute herein; that this Board is duly constituted by an Agreement dated July 23, 1982; and that all parties were given due notice of the hearing held on this matter.
Claimant, a Laborer on Gang 9097, was late to work on November 10, 1993. The Carrier charged him with tardiness. Claimant voluntarily waived his right to- an investigation and he accepted placement at Level 1 in the Carrier's UPGRADE Disciplinary Program.
On June 8, 1994, Claimant failed to report to work. Once again he knowingly waived his right to investigation and accepted discipline. Since he was-already at Level 1, the second offense elevated him to Level 2 in the UPGRADE Disciplinary Policy.
Claimant did not report to work at the assigned starting time of 6:00 a.m. on June 14, 1994 because he overslept. Claimant testified that he attempted to call the Carrier at 6:30 a.m., but nobody answered the telephone. Shortly after 10:00 a.m., Claimant paged the Track Supervisor to notify him of the absence.
The Carrier convened an investigation on June 22, 1994, to determine if Claimant failed to report to duty at the designated place and time on June 14, 1994. There was no dispute in the facts. Claimant candidly admitted that he had failed to report to duty. Thus, Claimant was guilty of the charged offense.
The Carrier decided to strictly apply the UPGRADE Disciplinary Program which provides that when an employee commits three similar offenses within a 36-month period, the employee
Public Law Board No. 3241 Page 2is placed at Level 5 in UPGRADE upon a finding that the employee committed the third infraction.' Thus, the Carrier dismissed Claimant from service.
Although the UPGRADE Policy contemplates that dismissal will be the appropriate penalty for the third offense of a similar nature within a 36-month period, we find that, under the peculiar circumstances of this case, dismissal is an excessive and unduly harsh punishment Although we fmd the discipline excessive, this Board is not overturning the UPGRADE Disciplinary Policy or, more specifically, we are not addressing the reasonableness of placing an employee at Level 5 for three infractions within 36 months or whether this aspect of the Program is an appropriate application of progressive discipline.
Rather, the unique facts herein justify a tempering of the penalty. Claimant was merely tardy one day and absent on two days. It is true that he was on the precipice of committing excessive absenteeism but the Board determines that Claimant deserves one final opportunity to demonstrate that he can regularly and punctually report to work.
To preserve the integrity of the UPGRADE Program and to impress upon Claimant that no further offenses will be tolerated, the Board orders that Claimant be placed at Level 4 upon his reinstatement to service.
C. F. Foost
Employees' Member