OPINION OF BOARD: Ms. James Kelley ("Claimant") was first employed by Amtrak in its Maintenance of Way Department on December 14, 1998 at Boston, MA. He became a new employee of MBCR, effective July 1, 2003, when Massachusetts Bay Commuter Railroad ("MBCR" or "Carrier") succeeded Amtrak as operator of the commuter railroad system for the Massachusetts Bay Transit Authority. He worked in the in the Engineering (Maintenance of Way) Department until his dismissal from service, effective May 20, 2005. Following a properly noticed hearing at which he appeared with representation, Carrier terminated the Claimant's employment for alleged recidivist violations of the Carrier's Attendance Policy, notwithstanding prior progressive discipline.
Among the policies and rules of MBCR which governed the Claimant's employment were the following:
The Absenteeism Policy sets forth a clear definition of an "occurrence of absence" for purposes of the policy, as well as a progressive Discipline Policy for Absenteeism. This 5-step discipline policy consists of the following steps:
Accordingly, in lieu of a formal investigation, Claimant executed another waiver on March 7, 2005, wherein he accepted a suspension of 10 days under Step 4 ofthe progressive discipline policy. This waiver also activated the deferred 3-day suspension from Step 3 and triggered the following written "Formal Warning" from his supervisor that the Claimant was vulnerable to Step 5 dismissal for his next attendance policy infraction:
Within a week of signing the above waiver, Claimant was absent from again for the entire work week March 14-18, 2005. Claimant was then absent again on March 25, 2005 (the Friday before his rest days) and for the entire work week of March 28-April 1, 2005. On none of these dates did Claimant contact his supervisor, Roadmaster Dana Rodricks, to secure permission to be off. Instead, he called a B&B Clerk headquartered in the Roadmaster's office, either on his office line or on his cell phone, and asked him to relay a message to Rodricks that he would not be to work those dates. At some point, the Claimant also provided his supervisor with a note indicating he had been "under a doctor's care" on his unexcused absence dates of March 15, 16, 17, 18, and March 30-April 1; however, the absences of March 14, 25, 28 and 29, 2005 were not so documented.
Following a formal investigation on due notice, at which the Claimant appeared with BMWE representation, Carrier found him culpable of violating the Attendance Policy while on a Step 4 waiver and invoked Step 5 to terminate his employment. (The Hearing Officer dismissed a related charge of "pattern absenteeism" for insufficiency of proof).
The investigative record shows that just days after receiving a Step 4 formal warning that further unauthorized absences would result in his dismissal, the Claimant was absent without properly notifying his supervisor and receiving permission to be absent on 11 days during the period March 14-April, 2005. The testimony of both Claimant and Roadmaster Rodricks confirms that
that Claimant never sought nor was granted approval from his supervisor to be absent on any of those dates of absence, whether "documented" or otherwise. In that regard, the Attendance Policy makes a very clear distinction between "notification" of an absence and "approval" of such absence:
Further, even if arguendo "medical documentation" had been a relevant factor, the unexcused absences of March 14, 25, 28 and 29, 2005 were not even so "documented" until after the charges were filed, when the Claimant presented papers suggesting that he had been receiving out-patient treatment for undisclosed reasons on some of those dates at St. Elizabeth's Medical Center. That appears to be the basis for the Organization Representative's plea during the appeal process that the Carrier grant the Claimant some consideration for allegedly "receiving help" for certain (unspecified) "unfortunate circumstances" which may have contributed to his abysmal attendance record. However, as we pointed out in Award No. 1 of this Board, leniency reinstatement in such cases is a management prerogative and cannot properly be imposed by arbitral fiat. See Third Division Award 15566. See also Third Division Awards 9775, 11914, 12104, 13116, 14800. In the final analysis, we can find no basis in the record before us for disturbing the Carrier's dismissal decision in this case.