PUBLIC LAW BOARD NO. 4950
NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
"Carrier"
VS.
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
"Organization"
STATEMENT OF CASES
I. Butler - Forfeiture.of Seniority
I. Butler --Dismissal from all Service
OPINION OF THE BOARD
Case No. 21
Case No. 22
Award No. 1
Award No. 2
On April 5 and 6, 1989, Claimant allegedly failed to cover
his assignment after having been sent first and second warning
notices for excessive absenteeism. A hearing concerning this
allegation was held on April 20, 1989 on the property. Despite
being notified of the hearing by--certified mail, Claimant did not
appear. Subsequent to the hearing, carrier discharged Claimant
for excessive absenteeism and for being absent without
permission. Carrier also contended that by absenting himself
from April 10, 1989 until April 23, 1989, without notifying his
supervisor, Claimant forfeited all seniority by violating Rule 27
(b), which reads as follows:
Except for sickness or disability, or under
circumstances beyond his control, an employee who is
absent in excess of fourteen (14) consecutive days
without receiving permission from his supervisor will
forfeit all seniority under this Agreement. The
employee and the General Chairman will be furnished a
letter
a
letter notifying them of such forfeiture of seniority.
The employee or his representative may appeal from such
action under Rule 26, Section 3.
The Organization raises a number of procedural and
substantive defenses on behalf of the Claimant. The Carrier
maintains that Claimant's guilt of the charges has been
established and the penalty assessed was appropriate.
The Board has determined that the claim must be denied. At
the time of his termination, Claimant was subject to the
conditions of a "last chance" reinstatement resulting from an
earlier discharge from which the Organization was successful in
having the Grievant reinstated. Under the terms of that
reinstatement, the Grievant was "subject to a one (1) year
probationary period during which any rule infraction would result
in an immediate dismissal, without right of appeal." Claimant
was also required to undergo certain Employee Assistance Program
treatment. Claimant was a signatory to this agreement, and
understood its terms. Nonetheless, the record evidence
establishes that Claimant failed to cover his assignment on the
dates alleged by Carrier. It also appears that Claimant did not
follow through on an EAP. As the Board finds no procedural
deficiencies in Carrier's handling of this matter on the property
which warrants setting aside the discipline
assessed, it
follows
that the claims must be denied.
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Claims denied.
W. B. Murphy
Carrier Member
W. E. LaRue
Organization Member
S. E. Buchheit
Neutral Member