Award No.
Case No. 47
(Brotherhood of Maintenance of Way Employes
PARTI ,S TO DISPUTE:
(The Burlington Northern Santa Fe Railroad
STATEMENT OF CLAIM:
1. That the Carrier's decision to remove Central Trackman Connie A. Nelson
from service was unjust-
2. That the Carrier now reinstate Claimant Nelson with seniority, vacation, all
benefit rights unimpaired and pay for all wage loss as a result
of
Investigation
held 10:00 a.m. November 13, 1996 continuing forward and/or otherwise
made whole, because the Carrier did not introduce substantial, credible
evidence that proved that the Claimant violated the rules enumerated in their
decision, and even
if
Claimant violated the rules enumerated
in
the decision,
removal from service is extreme and harsh discipline under the
circumstances.
3. That the Carrier violated the Agreement particularly but not limited to Rule 13
and Appendix 11 because the Carrier did not introduce substantial, credible
evidence that proved the Claimant violated the rules enumerated in their
decision.
FINDI
~
Upon the whole record and all the evidence, the Board finds that the parties herein are carrier
and employee within the meaning of the Railway Labor Act, as amended. Further, the Board is duly
constituted by Agreement, has jurisdiction of the Parties and of the subject matter, and the Parties
to this dispute were given due notice of the hearing thereon.
Claimant was regularly assigned as a Trackman on the Seligman, east section gang.
Claimant did not work on October 8, 9, 10, 11, 12, 14 or 15 of October, 1996.
Pursuant to Appendix No. 11, which reads:
"...In connection with the application of Rule 13 of the current Agreement, this will
confirm our understanding and reason of conference today, that effective October
1, 1976, to determine if the employment of an employee who is absent from duty
without authority, the Company shall address such employee in writing in his last
known address, by Registered or Certified Mail, return/receipt requested, with copy
to the general chairman, notifying him that his seniority and employment have been
terminated due to his being absent without proper authority, and that he may, within
20 days of the date of such notice, if he so desires, request he be gven an
investigation under Rule 13 of the current Agreement.
a
L~
Page 2 Award No. (i
Case No. 47
Note, effective January 1, 1984: The above understanding is to be applied only In
cases where the employee is absent from duty without authority for more than five
consecutive workdays ...."
the Carrier did, on October 16, 1996. direct the following letter to Claimant.
",...This is to advise you that, effective October 16, 1996, your seniority and
employment with the Burlington Northern Santa Fe Railway Company is hereby
terminated pursuant to the provisions of Letter
of Understanding dated July 13, 1976
for being absent without proper authority for more than five (5) consecutive work days
beginning October 8, 9, 10, 11, 14 and 15 forward.
If you dispute the action taken herelnabove, you may, if you desire, request
to be given an investigation under the provisions of Rule 1$ of the current agreement.
Such request for investigation must be made to this office at the address noted
below within twenty (20) days from the date of this notice.
fR1111
If
no request for investigation is received in my office within the twenty day
period, the matter
of your employment termination will be considered closed."
During the Investigation, requested by Claimant, in response to the question, 'Did you have
permission to be absent on these days?' Claimant responded, "No, I didn't."
Further testimony developed he was in jail on the days he was absent. When Claimant
talked to the Roadmaster, he said he was in jail and the Roadmaster advised Claimant that, "Well,
we can't excuse your absence for being in jail."
Without a doubt, Claimant was off in excess of five consecutive work days without authority,
and the Carrier has, pursuant to Appendix No. 11, correctly terminated his seniority and
employment.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an award
favorable to the Claimant() not be made.
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Pa®e 3 Award No. `f
Case No. 47
Robert L. Hicks, Chairman & Neutral Member
A
r
C. . oose, Labor M ber Thomas
tvi.
Rohling, CarTie embef
Dated:
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