Protest and claim of UTU Braloanaa J.L. Gipsar4 Hwstm Divisor, against the =warranted and unjust disdplim asses ad Brakanra 11. Gipscm on unproven and kufnopet charges and claim all tier lost, including date of investigation Novarbcr 20, 1991, from that daft that he was dismssed from service, Novernbcr 26, 1991, forward until he is propaiy remstxted to service with all sauonty rights, vacation ngbts, and Health and Welfare benefits restored. Also time beld off prior to investigation.
The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are the Carrier and Employed respecuvely, within the meaning of the Railway Labor Act, as amended; that this Board is duly hoed under Public Law 89.456 and has jurisdiction ova the patties and dispute involved herein; aryl, that the parties were given due notix of the hearing thaoon.
Claimant attended the June 18, 1993 Board session without objection fm the Carrier or Organization. Before the parties presented their rsspxtim pas ul this case, the neutral aranba of the Hoard described to the Claimant the process by which his claim was tirrcly progressed or the property by the Organi2ation trader the oontro0mg Agroanem which, sequentially, provides fix adjudrcatioa where, as hat, the dispute ncrtaias unresolved. In addition, the procedures gmaaiag this Hoard tardy the Railway Labor Act; as wneaded, and the parties' July 17, 1991 Memorandum of Agreement establishing this adjudiatoey body, wan similarly reviewed for iheClairzat's-baxfit-Vithin-mstethe norawl manba idared-biro-that-be-would-be-allowed-troaddress the Board 16 111s own deform upon tile COmptetiU6 of the pan& oral pt0os. Claimant idmowlal$al this arrargarocat and at the appropriate time addressed the Board.
'nine to his discbarM the Claimant was a brakanan wish tourtaa years of service with the Carries. Its regular migled job was the lbusmn to Dallas rum On October 29, 1991, be was notified by the Carrier to attrrid a fxatal tovemptian cootaniog his purported mdiff= to ditty and fitter to pmW his arpioyairat. Ice this ormatim it was alleged that the grievant only worked a total of five round trips firom August 12, 1991 through )aoba 29, 1991, while work was available to bite but during this period of tax he 'mmrlaed off thirty (36) ays, rejected one call fix an anergeoty trip and fared to anawsx W telepbove when nUed foe aneramcy trips ere (3) times." Tbese charges wee predicated upon the Carrier's Code of Opattt Rules and Eastern Region imetabk No. 8, to wit
The irnrestigatian was held m November 20, 1991, at which the Organization objected to the charges lodged against the Claimant m grounds that he did not violate the rules cited by the Carrier in light of Articles 68 and 84 ofthe Traimnerr's Agrees The refamced articles, in pertiaent part, state as follows:
The Organisation's objection was made part of the iavatigaton rI i'Oirmnia~ Exdubit A1 After the dose of this iamdpmry psoooodmg, to Carrier, by letter dated Nov®ba 26, 1991, 5ostod the Claimant guilty as dtarged and drsrtassed him &m service. Coasequecaly, the Orgaaiadm filed a elamm m behalf of the Claimant appealing Iris discharge. ABer the Carrier denied the claim at each step of the appeal: pro=s. the Orgamaatdoa submitted the saussolved dispute ova the Clainsut'a discharges to this Board fix a ftaal daermio~
Claimant was off work for a total of 36 days (or 75 percent of the time) wbea work eat available to him. In this regard, the Carrier submits that he missed calls an Septrzrrba 7, 9 and October 9, 20, 1991. The Carrier further tortes that the Claimant marked off sick of 4 days, but maintains that his claim of Blows was never substantiated at the iavess;gation. While admitting that the charge againtx the daimazir for rsj=ting a call was not verified, the Carrier nevatbdess assets that this overall absences during the period in question were in violation of Rules 604 and 607.
Although acknowledging that Articles 68 and 84 grant ttaiturrar the right to lay of~ the Carrier opines that neither article "was designed to allow the kind of unarthorirrd absences talren by Clairsrant, nor do they justify what has beoonre habitual absetteeian ca the part of the Claimant" (Carrier's Submission. p. 5) Insofar as the Carrier is the Organization failed to produce nay rule which exooerarrs the Claimmt simply because his excessive absences worked a "hardship" on the Carrier which erroat be excused.
For the foregoing reasons, the Carrier holds to the view that the Board should deny the instant claurt in its entirety.
The Organic arguing cotrvasdy, manna;T· that the dtarges against the Claunant had no basis in fact as evidauxd by en iavestigatim which was patently unfair and clouded with turcatainty. AL the outse4 the Orgamratim takes issue with the Carrier's caqjanuivg that the Clammri's reputed absences from work disadvantaged the railroad because trains supposedly were delayed as a consequence thereof while supervision had to find other eraploym to protect the service. QnwCaatim Transcript p. 7) The OrgaziLzatim contends that if such a situation existed. it was act the result of the Claimant's absences but traceable, iasuad, to the Carrier's faihm to maintain a sufdett source of ensploym to perform service.
Nee, the Organization salaes issue with the Qrrids allegtim that the Chaanant bid off silt several days during the period in question without substantiating his t'ilams. The Orguintim ash that the Cue, as a regular assigned brakemaa, was not requited to contact and apprise the crew dspawJa of his ill wires asadang off sick. Nor, the Organization avers, was hoe requircd under Article 68 to firrmsh the Carrier a "back to tvwk doacr's slip" since his illness was of short duration. Award No. 7
In the final analysis, the Organization doves that the Claunant reyected a call for an icy trip or that be failed to protect anergmey work during the days clauned by the Carrier since be was never personally contacted to perform such service. Overall, the Orgammticm posits that the Claimant nmrimd up and protected his regular assigrxd job from August 12, 1991 through October 29, 1991: and that be "regularly with the Carrier's site as to when his assigned job would work." (maiation's Submission p. 11; Iincsiaation Transcript: p. 10)
The Orgaairatioi urges this Board to sustain the claim and to reinstate the Claimant to service with pay for time lost, including full restoration of his seniority rights and benefits.
After thorouahly sasmnizing the record is this case, the Board is unable to find any probative evidence supporting the charges that arlrnioated in the Claimam's employment termination. Fsseritially, the Carrier relied err questionable teal proof and supposition to substantiate his purported Wum to pesform work and excessive absmt=an as violative of Rules 604 and 607. The Carrids probe of these ally mfiiacticais was egregiously flawed, depriving the Clairnartt of bis firadarnmtal right to a fair and impartial iavatigatiar_
In the course of the investigation, it was revealed that the Claimant, from August 12, 1991 through October 29, 1991, worked five round trips an his regular assignment and marked off an mrnianus occasions during this period for various reasons, including rUlaess. The Carrier's hearing offica observed that be was absent 36 days within a span of 48 days, or 75 percent of the time, (which he lame revised to 723 percale after excluding score of the Claanaat's absences as personal leave days). Here, the haring officer axed when he miscalculated the member of days between August 12, 1991 and Oaoba 29, 1991 - the period specified in the notice of investigation during which the claimarres absences from work amused. without disputing the nrmiber of days the Claimant marked off, the percentage of absmxs eorrrputad by the herring offices would have been considerably lower bad he taker into accent that the period in question covered a span of 79 days rather than 48 days. Fits miscalculation, which the Carrier heedlessly eras emraa (Cams'" c_bm_i"skn p. 3), raised the adverse iafaaiet that the Claimant's absences front work were ammsave and demonstrative of his iadifiereace to duty. In light of the ultimate penalty imposed on the CLaanarrt, it is obvious that the Carrier considered such an ihamta as as elernmt of proof oortfirniing the charges against hits. The Carrier's reliance on a mistalaea paxatage of absences and the inference drawn thasfxan, obfitscamd the purpose of the mvestigatioa It was incumbent upon the Carrier to prove the allegatcas at issue: (1) whether the Clamnnt missed calls to perform service for which he was available and failed to protect his assigrarimir, and, (2) whether his absmea from wait was not atrly excessive but unauthotimd. The Carrier did tat meet 'its burden of proof with respect to bis culpability in either insunce
Although the Clams worked only five round trips on his regular assigurnm during the period io question, his occasional work does not pmm ipso veto, that he made hi 'umvailabk far service or Wed to protect his assigrmiar< Claimasa's sauebintad testimony revealed that he ooastaly chwlmd the job site to determine when his regular assignment would warn. There is not a sabitiBa of proof that be DAW to protect his regular assigam~, While the Clainnrd is the mm= may bave been available for other wodc, he cannot be held aecamsable fin not paformiig "enagaicy" service simply because the Carrier was utiabk to comma hen Nor can, h be found that he rejased work since the Cmric admitted that "no evidaioe was adhiad to substantiate the charge that the Clabnant had rejected a call ...." (Caitids Submission. p. 4) Hear, too, there can be no finding that he failed to ptrxect the service aotwnhslaodmg the Carrier's half-hearted astaatioo that his alleged unavailability "sort of delayed] the trams" while supervision allmVW to locate other anployeas to perform the assi (Id., p. 7)
Further, the record is devoid of any proof supporting the Carrier's cootmtion that the Claaeaot's absences vein unauthorized or that he improperly laid off sick vntbout verifying his illness. As a regular assigned brakarmr-, the Claimant was permitted to lay off pursuuu to Article 68 of the Agremaant, provided there were "era men available to protect the service." In this regard, the Carrier offered no evidence drat 6e marked off on days where e,~ra ma where tttx available to perforru service. Nor can a be fnuad that the Clairmaat was abSerIC fmm work without authorization m the days he laid off sick because he did not submit proof of his illness. Since these absenxa were of short &nation be was not obligated to £rmish such verification when he laid off sick or upon his rearm to work The 36 days he was off work did not triW Article 84 of the Agreanem which requires a written leave of absence only if trainrtrea are absent for 45 days. Accordingly, the Claimant cemvised bb contractual rights to marls og and did so without itrfiingtisg Carrier Rules 604 and 607.
In chanaeiring the Claimant's layoffs as "habitual abseateeistr", the Carrier discarded the tights he had under the Agnanem ire order to provide an integral componem to the charges which ultimately resubed in his discharge. To link the Clamartrs maaber of absences to hit alleged failure to protect the service was improperly vet by the Carrier. During the period in question, the Cbrinran2 was permitted to mark off without ever being instructed by supervision not to do so. Trading similarly with this particular poin; Public Law Board No. 3080, err Award No. 13, held:
This died mtthoricty is applicable is the iastaar ease where the Carrier improperly used the Claintara's excused abseatxisar as the famdatim far his dismissal fxem service.
Lastly, the Hoard shall rUsia jurisdiarm over this ruse for purposes of resolving any dispute which may poly arise over the Claitnam's return to service.
Cherries P. Fnchbadt
CC auman and Namal Member