PUBLIC
LAW BOARD NO. 5$60
(Brotherhood of Maintenance of Way Employee
P RA TIE$ T0 ,bISPUFE:
(The Burlington Northam Santa Fe Railroad (Former
(ATSF Railway Company?
STA MENT QF- CLAIM
:
1. The Carrier violated the Agreement when Clahnant, J.f), Campbell
was denied seniority and compensation for any and all wages
beginning November 1, 2006 due to dismissal for alleged excessive
absences. The Claimant allegedly was absent without approval for
more than 5 days per Appendix 11, Carrier dismissed the Claimant
improperly. The Claimant was granted an unjust beant hearing
per Ruts 13, and Carrier did not respond to hearing par Rule 13, and
Carrier did not respond to hearing decision timely.
2. As a consequence of the violation referned to in part 1 the Carrier
shall Immediately return the Claimant to service with seniority,
vacation and all other rights unimpaired, remove any mention of
this
incident from Cialmants personal record, and make Claimant whole
for all time lost commencing November 1, 2006.
1 1
R
Upon the whole record acrd all the! evidence, the Board Rnds that the parties
herein are Carrier and Employee within the meaning of the Railway Labor Act, as
amended. Further, the Board Is duty constituted by Agreement, has jurisdiction of the
Parties and of the subject muter, and the Parties to this dhqwtit were given due notice of
the hearing thereon.
On November 1, 2008, the Carrier wrote Claimant as follows:
"This is to advise you, effective this date your seniority and employment
with the BNSF Railway Company is hereby terminated pursuurt to the
provlstons of 'Letter of Understanding dated July 13,1976, for being absent
without proper authority for more than live (5) consecutive work days
beginning October 2, 2006, and forward.
Page 2 Award No.
Case No. 318
If
you dispute the action taken hereinabove you may ff you desire request
to be given an investigation under the provisions of Rule 13 of the current
agreement. Such request for Investigation must be made to this office at
the address noted below within twenty (20) calendar days from the date of
this notice."
On November 17, 2000, Claimant's Representative responded as follows:
"The System Committee of the Brotherhood Maintenance of Way Employes
Division, on behalf of Joe b. Campbell (EIDSS 7439821) respectfully request,
pursuant to the provisions of Rule 13(t) of the Agreement, an unjust
treatment hooting. Mr. Campbell was dismlssed from service from the
Carrier, by letter dated November 1, 2006, as a result of being absent
without authority for more than five (B) consecutive work days beginning
October 2,2006.
Please contact our office so that a mutual time and date can be arranged
for this hearing."
After several mutually agreed to postponements, the hearing was held on January
30, 2007.
Rule 13(l) reads as follows:
13(l) - Unjust Treatment. An employee who labia he has been unjustly
treated may request a conference through his General Chairman. The
request must be submitbad to the Division Superintendent In writing by
his
General Chairman within twenty (20) days of the cause
of
complaint and
must set forth the details for the complaint During the conference the
employee may be assisted bit his duly accredited representative, at which
time an Wart will be made to dispose of the complaint based upon the
facts and arguments presented. If the complaint Is left unresolved, It may
be handled as a claim or grievance under the provisions of Rule 14."
Rule 14 is the Time Limit on Claims Rule,
`the Carrier, after
the
unjust treatment hearing, issued no decision as to the
credibility of Claimant!: masons for being absent without authority (to which he
admitted to
In
the hearing).
The Organization cited Rule 13(a) as being vlolated, however, that portion of hula
Page 3 Award No.
Case No. 318
13 pertains to other than an unjust treatment hearing.
This Board does not encourage the Carrier to not respond to unjust treatment
hearings. A simple response would suffice and would eliminate extra handling and
arguments that are now present In this case.
Under Rule 14, the claim must be filed within 80 days from the date of occurrence.
If no response is fumished following the unjust treatment hearing, then when would the
time limits begin for claim handling, at 50 days, 80 days or 18o days from the date of the
hearing, or Is the date of the hearing the start of the claim and within 80 days thereafter
the claim must be fled? The right to terminate if an unauthorized absence is in excess
of five consecutive work days is a good rote that protects both aides of the table.
In this Instance, the claim was timely flied. The matter of not furnishing a copy of
the transcript to the Organization is not a part of the unjust treatment outlined in 13(i)
but again, to not turs,tsh a copy only adds to the arguments and can add pages to a
matter that Is simple. Claimant was off In excess of five consecutive working days and
readily admitted he never sought authorization. It should be a cut and dried case.
This Board does find that the Carrier's handling of this matter Is somewhat
arbitrary but not in violation of any Agreement Rule.
AWARD
Claim denied
U
, RDER
This Board, after consideration of the dispute identified above. hereby orders that
an award favorable to the Ciaimant(s) not be made.
Page 4 Award No.
Case No. 318
Robert f_ Hicks, Chairman & Neutral Umber
David D. T rusr, For the Employe" Samautfre
Rogers, For Carrier
Dated: