PUBLIC LAW BOARD N0. 4823
PARTIES) THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
TO ) versus
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
"1. That the Carrier's decision to remove New Mexico
Division Trackman H. Payton from service was unjust.
2. That the Carrier now reinstate Claimant Payton with
seniority, vacation, all benefit rights unimpaired and pay
for all wage loss as a result of investigation held April
12, 1990, continuing forward and/or otherwise made whole,
because the Carrier did not introduce substantial,
creditable (sic.) evidence that proved that the Claimant
violated the rules enumerated in their decision, and even if
Claimant violated the rules enumerated in the decision,
permanent removal from service is extreme and harsh
discipline under the circumstances."
FINDINGS:
This Public Law Board No. 4823 finds that the parties
herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board has
jurisdiction.
on February 13, 1990, Carrier's Division Manager wrote
the claimant as follows:
"Your leave of absence expired on December 27,
1989. You have made no effort to renew this
leave of absence.
Be advised in connection with application of
Appendix 11 of Maintenance of Way Employes
Agreement, your seniority and employment with
the ATSF Railway is hereby terminated account of
being absent without authority beginning
December 28, 1989, to the present.
You have the right to request a formal investigation under the provisions of Rule 13 of the
Maintenance of Way Employes Agreement, provided
you do so within twenty days of this notice."
Case No. 18 Page 2 AWARD N0. 18 - C19
-;L3
Claimant requested a formal investigation and on March
9, 1990, Carrier's Division Manager wrote the claimant
notifying him of formal investigation to be held concerning
the claimant's alleged absence without proper authority from
December 28, 1989, to February 13, 1990, in possible
violation of Rule 1009 of Carrier's Safety and General Rules
for All Employees. This investigation was scheduled for
March,16, 1990, but was subsequently cancelled.
On March 16, 1990, Carrier's Division Manager wrote the
claimant notifying him of formal investigation to be held
concerning the claimant's alleged absence without proper
authority commencing December 28, 1989, in possible
violation of Rules 1, 2, 13 and 15 of the General Rules for
the Guidance of Employees, effective January 1, 1978. This
investigation was scheduled for March 27, 1990, but was
postponed until April 12, 1990.
Following the Investigation, Carrier found Claimant
responsible for violation of Rules 13 and 15, and he was
removed from service as a result thereof.
During the formal investigation, Carrier's witness
testified that prior to February 13, 1990, Claimant was on
leave of absence. According to said witness, that leave of
absence was issued December 20, 1988, and expired December
27, 1989. The reason for the leave of absence was illness
and personal injury. Carrier's witness also testified that
Claimant did not return to work following expiration of the
leave of absence and it was his responsibility to do so.
(There was no copy of the leave of absence in question
included in the evidence of record.)
Carrier's witness testified to the effect Claimant had
been on leave of absence since December 18, 1985, and that
he did not receive a letter from claimant requesting an
extension to his leave of absence.
Claimant testified adamantly to the effect that he
wrote the Division Manager prior to expiration of the leave
of absence. (He did not introduce a copy.of any letter to
that effect, to corraborate his testimony.) He also ,
testified, beginning at the bottom of Page 7 of the
transcript of the investigation, in pertinent part, as
follows:
"*** in '87 I got a letter stating that I would
have to request the necessary paperwork to be
able to obtain a leave of absence myself after
that one expired. I've done this both years,
I've requested this leave of absence in writing to
~~,_ yssa3
Case No. 18 Page 3 AWARD NO. 18
R. P. Benson's office in Albuquerque. Last year
I wrote them, they sent me papers, I sent them
back in. They did not send me a leave of absence.
This year I wrote to get a leave of absence, I
haven't heard anything from them. **"
Page 8
"Q. Are you saying, then, you requested an
extension to your leave of absence prior to the
expiration of the one that expired...
A. I have requested both years, yes, sir, I
have.
Q. And you never got anything from a reply from
that request?
A. I never got ...last year I did, but they never
sent me a leave of absence. I didn't even know
if I was on leave of absence or what. But I have
retained all of my letters and things to make
sure. This year I sent one and I don't even know
if my leave was approved or not. I sent another
this time, I didn't hear from them, but my mistake
was not sending it registered like I know that I
should have because I knew something like this
would come up. I've had this problem with the
railroad.
xxx
Q. Then you realized prior to the 27th of
December that you needed something to cover you?
A. That's right."
Page 9
"Q. When nothing happened, did you attempt to call
anybody or talk to Mr. Stone or any of his clerks?
A. well, in '87, '88 I sent in for my leave of
absence, they sent me the papers, but they never
approved or disapproved, at least I don't know of
any if they did or not. And then this year I sent
it again and I didn't get anything. The thing
that I'm questioning is he's showing you this,
everything I've gotten from the railroad has been
registered, why wasn't my leave approved and sent
to me registered you know? I knew that this was
going to come up.
Q. Did you ever receive a copy of your...
A. I haven't received a copy of anything.
Case
No.
18 Page 4 AWARD
N0.
18
y L1 g a3
Q. But how did you know that your leave of
absence had been approved prior to-that you were
covered prior to the 27th of December?
A. I did not know that, but I knew that it was
time for me to write because I have the letter
there also to write and try to get another one
even if that one was approved or disapproved. I
knew that it was time to do that.
Q. What address did you mail that letter to?
A. It was on Jefferson Street in Albuquerque.
That's where I mailed the last two that I've sent.
I've only requested two of them, and that was when
they told me I was going to have to request it
myself and I mailed both of them to Jefferson and
I see he's got a copy where this was approved, it
was never sent to me, I-didn't even know if I was
approved for leave of absence, and then this last
one that I sent I never got anything back from
it."
The Board notes again that none of the documents
alluded to in the above testimony were introduced as
evidence, to corraborate the testimony. Likewise, no
evidence and/or testimony was introduced to establish
whether the "Jefferson Street" address alluded to was (is)
the proper address for requesting leaves of absence.
Pages 10, 11 and 12 of the transcript of the
investigation contain the following testimony:
"Q. Looking at these leave of absence Forms 1516
from '85 and '86, they refer to just an extension
of your leave, which was due to the problem as
outlined by Dr. Maron that we've talked about.
You evidently continued, correct me if I'm wrong,
but did you continue to request leaves of absence
for one year periods of time from that time on to
the present?
A. From '84 on?
Q. Right.
A. No, I did not. '85 I requested to return to
work. They sent me this automatically, this leave
of absence, I did not request it. '86 I'm still
hassling with them, why can't I go back to work,
they automatically sent me a leave of absence.
'87 the same thing. Then all of a sudden I'm
taken off the seniority roster because I did not
request it. I don't understand this. It was so
convenient for them to send them to me before I
6~.-ysa3
Case No. 18 Page 5 AWARD NO. 18
I asked to return to work, then when I asked to
return to work, then it's my responsibility.
Q. Your're telling me,
though, that
according to
yourself, you're ready to perform normal duties,
you're back in good health?
A. Well, as far as I'm concerned I am. I was
then.
Q. Then why did you continue to sign leave of
absence forms to cover your leave of absence for
the last five years if you didn't need a leave of
absence, when according to the leave of absence
form...
A. Because this is a game that they play, see.
Had I not filed, asked for a leave of absence,
then I would have been terminated again, so I was
informed that I had better continue to send them
in or else I would be terminated, so I kept
sending in asking, but I'm asking the question is
why do I need a leave of absence if I've been
released for work, can you explain that to me,
please?
Q. *** Mr. Payton, how long have you been off
work now for this injury?
A. Nine years.
Q. And you have been renewing a leave of absence
every year?
A. Yes, sir, I have.
Q. Were you removed from service once before for
failure to renew your leave of absence?
A. Yes, I was.
Q. And was an investigation similar to this one
held?
A. No, it wasn't.
Q. What happened then?
A. They say that I hadn't renewed my leave of
absence, which I had sent it in, I know it's on
file, they should have that also, and then I
wrote to my Congressman and let them know what
happened and all of a sudden I get a letter back
stating that I'm put back on the seniority roster.
Q. And from that time on when you were placed
Case No. 18 Page 6 AWARD NO. 18
back on the seniority roster, was that in a leave
of absence status similar to the previous ones?
A. Yes, they sent me~a leave of absence then.
Q. Do you remember what year that was approxi
mately?
A. '87.
Q. And you got a leave of absence for '88 and
'89 that expired this last December?
A. I don't know if I go it a leave of absence or
not. I requested a leave of absence.
Q. Mr. Stone said that you had a leave of absence
that was good through December 17, 1989.
A. Well, I wasn't made aware of this, but I did
request another and I haven't been made aware of
the status of this one up until they tell me I'm
removed from the seniority roster again.
Q. OK, and you're saying that you made no attempt
to renew this leave of absence, is that correct?
A. Yes, I asked to renew this leave of absence,
this one and the other one. I didn't even know
this one was in existence, I knew that I had
requested it, but I did not know if it was
approved or disapproved. So when this one
expired in December, every December I have to
renew it, on the 27th of December as a matter of
fact. I wrote and asked for another and I still
haven't heard from them up until I was removed
from service again. This is the second one and
I did not know that this one exists and I asked
for another one and I questioned why did they not
send me an official something stating that I was
authorized a leave of absence, I didn't know my
status at the time.
Q. Would you have applied for another leave of
absence had one been mailed to you?
A. I would have applied if one, had been mailed to
me, but since one wasn't mailed to me, they told,
me I had to write and request them and this is
what I did both years. They should have that in
the file also, both years.
Q. Do you feel that if you were given another
physical, you would be approved to return to work?
A. I know that I would be."
Case No. 18 Page 7 AWARD NO. 18
Again, the correspondence alluded to in the
above-quoted testimony was not introduced as evidence in the
formal investigation.
On Page 13 of the transcript of the investigation,
Carrier's witness testified as follows:
"Q. Mr. tone, is it possible that in the shuffle
the paperwork may have gotten lost?
A. This being expired December 27, 1989, and the
availability of his PR file, it should not have
been lost.
Q. Should not or could not?
A.
Anything's possible,
but no, there's no excuse
for it to be lost during this period of time."
Beginning on Page 15 of the transcript of the
investigation, Claimant testified as follows:
"q. Does anybody here have anything further they
would like to add?
A. Yes, I would like to ask a question. This
leave was granted, I wasn't made aware of it. Did
you ever get a letter on this one asking
permission for this form here? I didn't see that
_-', when they had my file .here, when he was going
-_ through that, either. And that's the only way I
got this one, I wrote a letter and asked for this
one just like I asked for the other one. I
haven't seen either one of them on file.
Q. This Form 1516 Std. of which that's a copy, I
believe, covers the leave you are referring to.
Mr. Stone: You should have been mailed the bottom
of that.
q. The bottom half is missing, and that's the
half that would have been mailed to you, so
evidently it was mailed to you..
A. What about this half here?
Q. The top half is what's retained on the file.
The bottom half is what should have been mailed.
A. Why didn't I get a copy of this one?
Q. That's what I'm saying. It's missing from the
form, the original bottom half is missing from the
file copy, which indicates it was mailed to you,
you would have gotten this original.
Case No. 18 Page 8 AWARD NO. 18
A. Where is it in my file there that I wrote and
asked for this? I had to write and ask for this
one just like I did the other one. Is a copy of
my handwriting in there, because it was hand
written by me both times I requested it. They
were not typed, they were hand-written.
Q. Did you send it by certified mail?
A. This, no, I didn't, I think the other one I
did, I mightn't have, maybe I didn't either.
Q. I have this envelope here indicating you
request a letter or sent us a letter December 29,
1988.
A. That was for the first one, but it was hand
written and there's no letter in there to that
effect.
Q. This envelope is hand-written.
A. Yes, and the letter was hand-written also.
Both letters, this last one and this also.
Q. You're telling this committee, then, that
you requested this leave of absence by hand
written letter.
A. Yes, I did, both times.
Q. In '88 that expired in '89?
A. Yes, the last time and this time in hand
writing."
Again, none of the letters, envelopes, etc., alluded to
in the above-quoted testimony were reproduced for the
record.
Due to the failure of the parties to make a part of the
record copies of the leaves of absence, letters and other
documents referred to in the testimony, the Board has
nothing but unsubstantiated allegations to consider in
determining the propriety of Carrier's conclusions as to
Claimant's responsibility.
The claimant contends that he requested an extension to
the leave of absence in question, but no copy of any written
request was produced for the record, to substantiate his
contention. Claimant also indicates, at various points in
the transcript that he does not trust the Carrier. For
instance, he states that he "knew
something like
this would
come up. I have this problem with the railroad" and "this
is a game they play, see ***." If he "knew" there would be
trouble over the request for an extension to his leave of
e
IL
ra
- HS,A3
Case No. 18 Page 9 AWARD NO. 18
absence, as he alleged, then it appears to the Board that he
should not only have sent the request for the extension to
his leave of absence via Registered Mail, return receipt
requested, but also he should have checked with the Division
Manager's office to see why he had not received the
necessary papers before his leave of absence expired. under
the circumstances, his failure to do so undermines the
credibility of his testimony to some extent.
On the other hand, the Board's concern regarding the
lack of any evidence being introduced to substantiate the
testimony is only heightened by the fact that important
documents are apparently missing from the Carrier's personal
record file on Claimant; i.e., documents which might help to
corroborate or refute (at least circumstantially) the
claimant's contentions as to his alleged request for an
extension to his leave oif absence. If the Carrier had
produced a copy of Claimant's letter requesting the previous
extension to his leave of absence (testimony indicated
Carrier's file contained only the envelope in which letter
was sent), and Carrier had been able to establish that it's
records pertaining to Claimant were current and complete,
such evidence might have caused the Board to question
further the credibility of Claimant's testimony (to the
effect he had written the Carrier requesting a subsequent
extension).
This Board is reluctant to make it's findings based on
the credibility of testimony (Determining the credibility of
witnesses is generally considered to be the domain of the
Carrier). However, since the burden of proof is on the
Carrier in discipline cases, it is primarily the Carrier's
responsibility to develop the facts in such cases. If there
are documents available to help establish the facts in a
discipline case, Carrier's failure to introduce such
documents into the evidence of record undermines the
testimony of Carrier witnesses as to the alleged facts,
particularly when such testimony is refuted. Carrier not
only has the obligation to document the facts (It bears the
burden of proof) in such cases, but also the means and
resources. In the instant case, the Carrier has failed to
meet it's burden of proof and the claim must be sustained,
except as set forth below.
The Board cannot give any weight to Claimant's
testimony to the effect he is (and has been) physically able
to return to work. The issue or question before the Board
is whether or not Claimant was properly found responsible
for failure to protect himself with a leave of absence. On
this issue, the Board finds in favor of the claimant; he
shall be reinstated and placed on leave of absence. The
Case No. 18 Page 10 AWARD No. 18
Board's findings do not address the claimant's physical
qualifications for return to active duty.
AWARD: Claim sustained in part in accordance with the
findings above.
ORDER: Carrier is directed to comply with the Award
within thirty (30) days from the date shown
thereon.
G. ichael Garmon, Chairman
Emp oyee 'Member
\-/
0-~
e~
Carrier Member
Da d at Chicago, IL: