BEFORE PUBLIC LAW BOARD NO. 7590 CASE NO. 55


BROTHERHOODOF MA INTENA NCE OF WAY EMPLOY ES DIVIS ION

V

BNSF RAILWAY

(Former ATSF Railway)

BNSF FILE NO. 14-16- 0256

BMWED FILE NO. 1251- SL13 A I- I 6 6

Claimant: J. Farris STAT EMENT OF CLAIM : "Claim of the System Commit teeof the Brotherhood that:


We present the following claim on behalfofSoutheast Division 900 Jessy Farris (0239848) Seniority Date October 14.2013 for reinstatement with all seniority rights restored and all entitlement to. and credit for. benefits restored. including vacation and health insurance benefits. The claim antshall be made ""hole for al l linancial losses as a result of the violation. including compensation for: I.) straight time for each regular work day lost and holiday pay for each holiday lost. to be paid at the rate of the position assigned to the claimant at the time of removal from service (this amount is not reduced by earnings from alternateemploymcnt obtained by the claimant while v.rongfully removed from se rvice):2.) any general lump sum payment or retroactive general wage increase provided in any applicable agreement that became effective while the claimant was out of service; 3.) overtime pay for lost overtime opportunities based on overtime for any position claimant could have held during the time claimant was removed from service, or on overtime paid to any junior employee for work the claimant could have bid on and performed had the claimant not been removedfrom service: 4.) health. dental and vision care insurance premiums, deductibles and co-pays that he would not have paid had he not been unjustly removed from service commencing April 5.2016. continuing forward and/or otherwise made whole. All notations of the dismiss al sh ould be removed from all Carrier records.


Findings:

The carrier or carriers and the empl oyee or emplo yees in volved in this dis pute are respectively carrier or empl oyee within the meanin g of the Rail way Labor Act as approved Jun e 21, 19 34.

Public Law Board 7590 has jurisdic tion over the parties and the dis pute involv ed herein .

Parties to said dis pute were given due notic e of hearin g thereon.

Claimant did not report for duty on April 4 and 5, 2016. Claimant received a letter dated April 5, 2016, that provided:

An investigation has been scheduled at 1000 hours, Wedne sday, April 13, 2016, at the BNSF Conference Room at Crest Tower, 1631 West 33rd Place, Tu OK, 74 1 07, for the purpose of ascertaining the facts and determining your responsibility if any, in connection with your alleged failure to report for duty as Assistant Foreman of TSECO120 and alleged failure to comply with instructions to obtain authorization for absence from Roadmaster Aaron Erwine on April 4, 2016 and April 5, 2016.

This investigation will determine possible violation of MWOR 1.13 Reporting and Comply with Inst ructions, MWOR 1.15 Duty Reporting or Absence, El 22.6 Absence From Duty Procedures.

Following an inves tigation , Claimant was notified in a letter dated May I 0, 2016:


As a result of investigation held on Wedn esday, April 13, 2016 at 1000 hours at BNSF Conference Room at Crest Tower. 1631 West 33rd Place, Tulsa, OK, 74107 you are hereby dismissed effective immediately from employment with the BNSF Railway Company for failure to report for duty as Assistant Foreman ofTSEC0120 and failure to comply with in structions to obtain authorization for absence from Roadmaster Aaron Erwine on April 4, 2016 and April 5, 2016. It has been determined through testimony and exhibits brought forth during the investigation that you were in violation of MWOR 1.1 3 Reporting and Complying with Ins tructions, MWOR 1.15 Duty Reporting or Absence and EI 22.6 Absence from Duty Procedures.

In assessing discipline, consideration was given to your discipline record and the discipline assessed is in accordance with the BNSF Policy for Empl oyee Performance and Accountability (PEPA).

Enclosed are copies of the investigation transcript and exhibits entered during the investigation. Copies of these documents have been sent to your Representative.

This letter will be placed in your personnel record.


The Carrie r argues that Claimant did not show up for work. Although he stated that there were life events, that does not excuse him from notifying his superviso r. Claimant has a hist ory of not appearing and the Carrier has given him every opportunity to correct.

The Organization counters that Claimant was contacted by his Foreman and told not to come into work. Claimant stated that he had been up with an ill grandparent and Claimant thought he was excused. Further, Claimant produced a document from Army Medical Command that detailed medical restrictions affecting his milit ary duties. He did not know that such medical restriction should be reported to the Carrier.

The Board sits as an appellate forum in disc ipline cases. As such, it does not weigh the evidence de novo. Thus, it is not our function to substitute our judgment for the Carrie r's judgmen t and decide the matter according to what we mig ht have done had the decis ion been ours. Rather, our inquiry is whether substant ial evidence exists to sustain the finding against Claim ant. If the question is decided in the affirmative, we are not warranted in dis turbing the penalty absent a showing that the Carrier's actions were an abuse of discretion.

MOWOR Rule 1.1 3 and 1 .15 provide:


1.'13 Reporting and Complying with Instructions

Elll)loyeas v.111 report to and comply witi im;tructiona frooi supervisor.. who have lhe pJt>Per juriidiction. Empfoyeei; will comply with lnstructioni; issued by managers or varlovs departments when the n struct'O:ls apply to their <llUes.


  1. .·14 Employee Jurisdiction

    Employees are under tho )Jrisdidloo of tho supavtsors of the ra,road !hey areoporatingon.

    V·lhonoperating on another railroad, unb:.s olhtwWi$e instructed, employees wSI be gowmed by:

·1 . 1 5 Duty-Reporting or Absence

Emplo;,eesmust report for du(y at the designated time and pf909 vAth the necessary equipment to perform ttie o.ities. They must spend thelr Ume oo Cllty wol1d1g Olly fOf the ral road. Empl0'jees must not leave thek' s:;lgnmen cxch dulle!l, or aDow others to l!H l hclr .x; lgn mcnt wthoot proper authority. ConCnucd faiure by e loyees t:> protect theiremployment wlU be cause for dlsmlssal.


The Board has revie wed the evidence. There are no procedural violations which void the discipline. On the merits we find that there is subs tantial evidence in the record to support the disc i pline. The evidence showsthat Claim ant did not report for duty on two consecutive dates. He was contacted by his Foreman and told to stay home because he was already over an hour late. This was Claim ant' s fifth s imil ar issue in less than a year. He was aware of the procedure for contacting his Foreman if an absence was necessary. Further, his possib le medi cal restrictions were not reported to the Carrier. Claim ant was aware that he had to report any restriction to Army Reserve Command. He was also aware that any restric tions should be reported to the Carrie r if they impacted his job performance or he required an accommodation.

Empl oyees have a duty to report to work. Claimant did not report to work on two consecutive dates and did not contact his Foreman. There is s ubstantial evidence to suppo rt the finding of Rules infraction.

A review of Claimant's di ciplinary history indicates that the in tant matter was Claimant's fifth similar incident violation in le than a year. The Carrier s deci ion to dismiss Claimant was not an abu e of Carrier discretion.

Award:


laim denied



Organization Member


Brian Clau s

eutral Member Carrier Membe r