JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
GENE L. SHIRE, CARRIER MEMBER
DON HAHS, EMPLOYEE MEMBER
Date of Hearing - March 21, 2000
Date ofAward -Aprii 30, 2000
The Chairman and Neutral Member, after review of the entire record, has determined that the issue before this Board is:
Public Law Board No. 6041, upon the whole record and all of the evidence, finds and holds that the Employees) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the disputes) herein.
According to the record before this Board, Claimant, a Denver Extra Board engineer, was called for Train K-DENDEN-12A, ordered for 3:OOAM o n lone 12, 1998. He accepted the call, and while enroute to work from Pueblo, was stopped by police for speeding. During the handling of that violation, it was discovered by police that there existed an outstanding warrant for Claimant's arrest in connection with a previous and unrelated traffic violation, and he was taken into custody pending resolution of that warrant. As a result, Claimant was unable to protect the assignment for which he was called on that date. It is noted that he did, upon his incarceration, advise Carrier to that effect, at which time Carrier called in another engineer. Train K-DENDEN2-12A, albeit delayed, operated as anticipated. SBA - 6041
Following the hearing, by letter dated July 23,1998, Carrier acted to dismiss Claimant from service, the propriety of which is now before this Board for consideration. It is noted that the entire transcript of investigation, all correspondence applicable to the instant claim, and a copy of Claimant's service record were furnished us for our deliberations in this matter.
Carrier, as the moving party, argues initially, and simply, that Claimant accepted an assignment for which he failed to report. Citing Third Division Award No. 27727, wherein Referee Carter held that ... incarceration is not a valid excuse for not protecting an assignment," Carrier does not find Claimant's unfortunate run-in with the police on his way to work in any way exculpatory, and as such, maintains that it acted appropriately in assessing discipline following the July 2, 1998 hearing. With respect to the magnitude of that discipline, Carrier asserts that Claimant's dismissal was effected entirely within the progressive guidelines established by its Policy for Employee Performance Accountability. In its letter to the Organization during the handling of the case on the property dated November 3, 1998 (Carrier Exhibit 7), Carrier states as follows with respect to Claimant's service record:
In Claimant's behalf, the Organization argues that he accepted his calf for duty fully intending to protect that assignment. It asserts that what transpired in the ensuing hours (i.e. his detention by police), were circumstances unforeseen and, as a result, completely out of his control. It is noteworthy and commendable, according to the Organization, that Claimant,
immediately upon his incarceration on the morning in question, notified Carrier of his predicament in order to facilitate the securing of a replacement engineer for Train K-DENDEN2-12. The Organization further maintains that even if discipline for such a minimal and unintentional failure were warranted, Carrier's actions in this case, when examined in light Claimant's record, were harsh and excessive. In support, it cites, among others, First Division Award 27022, in which Referee Meyers held as follows:
In view of the above, the Organization reminds this Board that the 90day suspension removed from Claimant's service record in Award No. 27, also, in effect, removed a key brick in Carrier's foundational assertion o f progressive discipline in this case. It argots, persuasively, that "missing a call has never been a dismissal offense an this property" (Organization submission at pg. 9), and reiterates its allegation that Carrier's actions were "overly severe for the nature of the rule violation".
Based upon the whole of the record, this Board agrees with both Referees Carter and Meyers. There already exists substantial foundation in the industry that incarceration does not, in fact constitute a valid excuse for failure to protect an assignment, and the record in this case presents no basis whatever for finding otherwise. The unfortunate timing of his arrest notwithstanding, Claimant failed to cover an assignment for which he was called, and Carrier's determination of guilt was therefore authentic.
Having said that, the Board finds, however, that the punishment in this case did not fit the crime. The Organization's assertions of harshness are well founded, particularly when the whole of Claimant's employment history is taken under advisement. While Carrier may have considered the discipline assessed in this case to be progressive prior to the rendering of Award 27 of this Board, it failed to re-examine its position with regard to the instant claim subsequent to its findings. By that Award, Claimant's service record was cleared, in its entirety, of any and all reference to the 90-day actual suspension addressed in that case, and we must, as a matter of duty, treat that particular 'incident as if it had never occurred. We note that the discipline last assessed against Claimant, was a 20-day actual suspension in 1996 for failure to protect his assignment (Carrier Exhibit 11), a fact relevant to this case when held in tension with Carrier's acknowledged practice of appropriating discipline on a progressive scale. In light of the foregoing and upon careful consideration of the entire record, this Board finds that dismissal was, indeed, excessive under the circumstances at bar.
Accordingly, the discipline under consideration herein is hereby reduced to an actual suspension of 90 days in keeping with Carrier's policy of