Public Law Board No. 6402, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employees 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.
The facts indicate that on July 16, 2010, the Claimant informed Manager of Track Maintenance (MTM) J. Parker that he had injured his back and would be absent until July 19, 2010. On July 19th MTM Parker called the Claimant to follow-up with him. At that time the Claimant advised Parker he would be having surgery and would be off for an additional week. According to the Carrier, MTM Parker did not hear from the Claimant until November 22, 2010, when both were present at an Investigation.
On October 25, 2010, the Carrier received a letter from the Claimant's attorney, F. Daniel Petro wherein he stated that the Claimant's surgery was very painful and debilitating and due to pain and medication he was not able to communicate the extent of his condition to the Carrier. Metro went on to state that Claimant was in therapy and taking narcotic medication for injuries and was not yet fit to return to service which had been documented by a physician and sent to the Carrier's Medical Department.
Shortly, thereafter, Claimant was directed to attend a formal Investigation on November 5, 2010, which was mutually postponed until November 22, 2010, concerning in pertinent part the following charge:
On December 1, 2010, Claimant was notified that he had failed to provide just cause for his continued absence from assignment without authority and was considered to have resigned and his name had been removed from the seniority roster pursuant to Rule 14.
It is the position of the Organization that the Carrier improperly terminated the Claimant's seniority by alleging that he failed to comply with Rule 14 and the record shows that the Carrier was well aware of his status via the Medical Department and its Claims Agent. It her argued
that even if the Claimant did have an unauthorized absence as alleged, which the Carrier did not prove, termination of his seniority was exceedingly harsh discipline as Rule 14 was negotiated to address those employees who do not intend to continue their employment relationship with the Carrier by voluntarily failing to report to their assigned positions on a consistent basis and the Claimant did not fit into that category. The Organization maintained that the Carrier's decision was improper inasmuch as the Carrier (1) failed to provide a "fair and impartial" Hearing; (2) made multiple due process violations; (3) failed to meet its burden of proof especially when the record substantiates that on November 8, 2010, Claimant was granted a Medical Leave of Absence through December 1, 2010; and (4) issued excessive and unwarranted discipline. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the Carriers position that the transcript verifies that the Claimant did not have a reason for failing to secure proper authority from his Manager to be absent beyond July 19, 2010, therefore, the Claimant was absent without authority for over 30 days and his termination pursuant to Rule 14 was proper. It further argued there were no procedural errors on its part that deprived the Claimant of a "fair and impartial" Investigation, but it did assert that the Organization failed in its initial appeal to direct it to the proper Carrier Officer. It closed by asking that the claim remain denied.
The Board has thoroughly reviewed the record and is not persuaded that any procedural errors occurred by either party in the handling of the claim that denied the Claimant his "due process" Agreement rights, therefore, the dispute will be resolved on its merits.
The record indicates and the Carrier does not dispute the fact that Claimant suffered an injury nor does it refute that Claimant was in contact with the Carrier's Medical Department regarding his injuries and keeping them up-to-date on his medical condition. Additionally, the Carrier does not deny that the Claimant responded to the Medical Department when it requested information or documentation. Essentially, the Carrier argued that the Claimant failed to secure authority for his Medical Leave of Absence (MLOA) from his direct Supervisor and he did not keep him updated, thus he was in violation of Rule 14. Examination of Rule 14 reveals there is nothing in the Rule that requires an employee to secure his MLOA from his immediate Supervisor or that he must continually update that Supervisor on his medical condition. The record is clear that the Claimant was in contact with the Carrier via its Medical Department and Claims Agent who were well aware of the Claimant's medical status. The Claims Agent specifically wrote the Claimant's attorney on September 28, 2010, regarding the Claimant's medical condition with the following directions P.L.B. No. 6402
Additionally, the evidence indicates that on November 8, 2010, the Medical Department wrote the Claimant and stated in pertinent part the following:
On November 22, 2010, the day of the formal Investigation wherein the question at issue was whether or not the Claimant had over-extended his MLQA the issue was dead because the leave had been extended until December 10, 2010. It appears there was a lack of internal communication between various Carrier Departments for which the Claimant cannot be held accountable. Therefore, the Board finds and holds that the termination of Claimant's seniority was in error and Claimant shall be reinstated to service, with seniority intact and benefits unimpaired with full back pay in accordance with Rule 22(f) of the Agreement from the date he was certified by a medical physician as being fit for service.
Claim sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 30 days following the date the Award was signed.
