Request expungement of 31-day actual suspension of Engineer R. D. Hoverson and pay for all time lost.
The Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as amended. This Board has jurisdiction of the dispute here involved.
The parties to this dispute were given due notice of hearing thereon.
Claimant in this dispute was notified to report for an investigation on October 10, 1990 on charges that he "failed to remain marked up with CMS to make your agreed upon miles of 3200 to 3800 per checking periods January 1990 through September 1990.11
The basis for these charges is a letter dated January 4, 1990 to claimant from Mr. G. D. Middleton, Manager Operating Practices, which reads in part as follows:
For this record the Board notes that while Mr. Middleton states there was an "agreement" that claimant would make between 3200 and 3800 miles per checking period, during the course of the investigation both the claimant and his representative (who also attended the meeting in Mr. Middleton's office) deny that there was an "agreement" involved.
It is the opinion of this Board that Carriers Manager Operating Practices does not possess the authority to amend the existing rules and working conditions agreement by imposing or attempting to impose standards such as those here involved. if it is Carriers desire to create a rule imposing minimum miles each month for its Engineers, it can only do so by agreement with the Organization, not by edict.
Inasmuch as claimant was charged with failure to comply with an illegally imposed minimum standard, it is obvious that he cannot be found guilty of violating Rules A, B and 600 of the General Code of Operating Rules, Second Edition, effective October 29, 1989.
The Board would be remiss in its obligations if it did not note that claimant here is building an unenviable record of laying off sick and would urge that he take whatever remedial action is necessary to correct this problem. Carrier does have the right to expect its employes to be available for service and employes who are constantly laying off create problems for the railroad and for their fellow employes who must count on them to carry their fair share of the work load.
Based on the record before us, we find that Carrier erred when it sustained the charges against claimant and assessed him with a 31-day suspension from service, which, in turn, required that he also serve a deferred 15 day suspension previously assessed. Claimant was actually erroneously suspended from service for 46 days.