NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 4979
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION
AWARD N0. 12
Case No. 12
Carrier File No. BMWE-D-132
STATEMENT OF CLAIM
Claim of the Brotherhood that:
(a) Carrier's dismissal of Claimant L.
Threadgill was without just and sufficient cause,
was not based on any clear and probative evidence
and was done in an arbitrary and capricious manner,
wholly beyond the Scope of the Scheduled Agreement.
(b) Claimant Threadgill shall be reinstated
into Carrier's service with all seniority entitlements
and shall be compensated for all lost wages, including
overtime benefits which would accrue to him, as
provided for in Rule "K" of the Scheduled Agreement.
F I N D I N G S
On November 15, 1990, the Board. issued an Interim Award
reinstating the Claimant to service, without resolution of
the matter of claim for back pay. This Award addresses what
penalty, if any, should apply to the Claimant.
PLB No. 4979
Award No. 12
Page 2
Award No. 11 supported a 15-day deferred disciplinary
suspension assessed to the Claimant for absenteeism. This
had followed a previous 10-day deferred suspension and a warning letter, both for absenteeism.
In this dispute, the Claimant was subject to an investigative hearing concerning his alleged absence without authorization on April 24-25 and May 13, 1990, and late reporting
on May 18, 1990. Following the hearing, the Claimant was dismissed from service.
From the record, it appears that the Claimant gave some
notice of his absence on April 24-25 but that he clearly was
not granted permission for such absence. He failed to provide
later supporting data as to the reason for his absence. The
absence on May 13, 1990, was for a scheduled overtime day and
again was without advance permission or appropriate justification.
The Board finds that there may have been circumstances
to explain but not excuse the cited absences. Coming immediately following previous disciplinary penalty for the same
offense, the Claimant should have been aware of the risk in
his failure to protect his assignment.- The Board has already
determined that dismissal from service was unduly harsh.
There is full support, however, for the intervening time
between his dismissal and reinstatement to serve as an extended
disciplinary suspension, to be retained on his record as a
guide to the necessity for the Claimant to meet all requirements
PLB No. 4979
Award No. 12
Page 3
of his position in order to retain his employment relationship with the Carrier.
FINAL AWARD
Claim sustained to the extent that the Claimant has been
offered reinstatement to his former position with seniority
unimpaired, as provided in the Interim Award. Claim for back
pay or retroactive benefits is denied.
0
HERBERT L. MARX, JR., Chairman and Neutral Member
B. A. WINTER, Employee Member
P. A. ENGLE, Carrier Member
NEW YORK, NY
DATED:
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