PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 124
and )
Award No. 121
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
T. W. Kreke, Employee Member
D. A. Ring, Carrier Member
Hearing Date: February 7, 2008
STATEMENT OF CLAIM:
(1) The dismissal of BMWE employee K. L. Swartwood for allegedly being absent
from service without proper authority on June 21, 22, 23, 24, 25 and 26, 2005,
was arbitrary, capricious, without just and sufficient cause and in violation of the
Agreement (System File RJ-0548-210/Carrier File 1445497).
(2) As a consequence of the violation referred to in Part (1) above, the Claimant shall
be reinstated to service with seniority and all other rights unimpaired, his record
cleared of the June 27, 2005 forfeiture of seniority letter and he shall be
compensated for all wage loss suffered.
FINDINGS:
Public Law Board No. 6302 upon the whole record and all of the evidence, finds and
holds that Employee and Carrier are employee and carrier within the meaning of the Railway
Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the
parties to the dispute were given due notice of the hearing thereon and did participate therein.
Carrier terminated Claimant's seniority pursuant to Rule 48(k). Rule 48(k) provides in
relevant part:
Employees absenting themselves from their assignments for five (5) consecutive working
days without proper authority shall be considered as voluntarily forfeiting their seniority
rights and employment relationship, unless justifiable reason is shown as to why proper
authority was not obtained.
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The record reflects that from June 6 - June 26, 2005, Claimant was serving a sentence of
incarceration for driving under the influence of alcohol. Claimant was approved to use vacation
time for June 3 - 20, 2005. His Rule 48(k) termination of seniority was for absences beginning
June 21, 2005.
Of particular significance is Claimant's absence on June 21, 2005. Claimant maintained
that prior to his incarceration, he spoke with his manager and requested a leave of absence, was
advised that he could not receive a leave of absence for serving a jail sentence and then requested
and was granted a personal day for June 21. Carrier's records did not reflect a personal day for
June 21.
Incarceration is not a valid reason for taking a personal day. However, there does appear
to be confusion as to whether Claimant believed that he had an approved absence on June 21.
Under the circumstances, and in accordance with prior precedent, see, e.g., Public Law Board
6302, Case No. 21, Award No. 24, we find that it is appropriate to temper the harshness of a
literal application of Rule 48(k) and award that Claimant be reinstated to service with seniority
unimpaired but without compensation for time out of service. Claimant's reinstatement is
conditioned on Claimant, within two weeks of being notified of his reinstatement, contacting
Carrier's Employee Assistance Program, complying with all requirements imposed on Claimant
by the EAP and complying with any reasonable requests by Carrier to document his compliance.
AWARD
Claim sustained in accordance with the Findings.
ORDER
The Board having determined that an award favorable to Claimant be issued, Carrier is
ordered to implement the award within thirty days from the date two members affix their
signatures hereto
D. A. Ring
Carrier Member,
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aced at Chicago, Illinois, May 31, 2008
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Martin H. Malin, Chairman
T. W. Kreke, E ployee ember
Employee Member