,v
PUBLIC LAW BOARD NUMBER 3932
Award Number: 11
Case Number: il
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
STATEMENT OF CLAIM
"On Monday, December 12, 1983, I spoke to
Track Supervisor P. Adamovich on the phone at
7:30 A.M. and advised him that I would be
approximately one-half hour late due to car
troubles. I was advised by him that I would
not work if I was going to be late. Because
of this action on his part, I did not work
that day.
Subsequent to this on Wednesday, January 4,
1984, Joe McConnell, trackman 6182 was
allowed to arrive 1 hour late and still
complete the day after talking to Mr.
Adamovich.~
On Thursday, February 9, 1984, Mr. A.
Preston, foreman, arrived 1 hour late and he
also was allowed to work after speaking to
Mr. Adamovich.
In light of this violation of Item 4, The
Committee Work Agreement dated October 1,
1978, I am requesting 7 1/2 hours at the pro
rata rate, and that the Carrier cease this
discrimination against union
representatives."
FINDINGS
By letter dated February 13, 1984, Claimant filed a claim
for compensation with Carrier on the grounds that Carrier
improperly refused to allow him to work on December 12, 1983.
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The issue to be decided in this dispute is whether Claimant
was wrongfully denied an opportunity to work.
The Organization contends that Carrier violated the
Agreement through its arbitrary and discriminatory treatment of
Claimant. The Organization alleges that Claimant called Carrier
and notified his supervisor that he would be one-half hour late
due to car trouble. The Organization further alleges that two
other employees arrived late for work on the date in question and
were allowed to remain on duty while Claimant was not permitted
to report for work. The Organization contends that this
disparate treatment clearly constitutes discrimination on
Carrier's part in violation of Item 4 of the October 1, 1978
Agreement, which states "The Corporation shall not discriminate
against any of its employees who are selected as Local Committee
Representatives of the Organization..."
Finally, the Organization disputes Carrier's contention that
the other two employees were not similarly situated to Claimant.
The Organization contends that Carrier failed to establish why
Claimant could not have been utilized while the other two late
employees were allowed to work. The organization maintains that
since Carrier presented the dissimilar situations as an
affirmative defense, it has the burden of proving such was the
case. Finally, the Organization argues that logically Carrier's
excuse lacks credibility since the other two employees arrived
one hour late while Claimant would have been only one-half hour
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PLB 3932 - Award No. 11
late.
The position of the Carrier is that Claimant is not entitled
under the Agreement to the compensation requested.
Initially, Carrier argues that it is undisputed that
Claimant reported late for work. Carrier maintains that
Claimant's supervisor made a proper determination that his gang
would be departing before Claimant would be able to arrive at
work, and that he therefore told Claimant not to report for work.
Carrier argues that Claimant's tardiness, not any discriminatory
treatment on its part, was the cause for his failure to be
utilized. Carrier further argues that it is under no obligation
to accommodate a late employee's transportation needs. Carrier
maintains that it is a well established principle that an
employee reporting late for work may properly be denied an
opportunity to perform work on that date, and cites several
awards to support its position.
Finally, Carrier denies that Claimant was treated in a
discriminatory manner in violation of Item 4. Carrier argues
that Item 4 has no applicability since its decision regarding
Claimant's situation had nothing to do with his status as a Union
representative. Carrier further argues that it established that
the other two employees had different transportation available to
them, thus explaining their ability to perform service on the
date in question.
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After review of the record, the Board finds that the
Organization's Claim must be denied.
In a claim based in whole or in part on alleged
discriminatory treatment, the burden of proof rests with the
party alleging such discrimination. In the present case, we find
that the Organization has failed to establish through substantive
evidence that Carrier acted in a discriminatory manner towards
Claimant.
Under the circumstances of this Case, the Organization must
establish that Carrier could have utilized Claimant despite his
lateness, and yet purposely decided not to do so. Furthermore,
to sustain a claim under Item 4, the Organization must establish
a
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inl+r66
that Carrier demw^-aga~t Claimant because of his Union
representative status. The Organization has failed to establish
either of these allegations.
It is undisputed that Claimant would have been one-half hour
late. It is well established that Carrier need not allow an
employee to report late if his services will not be required due
to such lateness. The organization has failed to establish that
Carrier acted in bad faith when it determined that Claimant could
not be used. The mere fact that other employees reporting late
were utilized is not dispositive. Carrier has offered a
reasonable explanation for the alleged disparate treatment, and
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PLB 3932 - Award No. 11
the organization has failed to refute that explanation. The key
inquiry
concerning this
Board is whether Claimant was wrongfully
denied an opportunity to work. We find that the Organization has
failed in all respects to establish that Claimant was
intentionally and discriminatorily denied the opportunity to
work.
AWARD
Claim denied.
a,&
Or ization Member
DATE: g~`
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