Brotherhood of Maintenance of Way E mpl oyes ) Di vision - IBT Rail C o nference )
)
And )
)
Norfolk Southern Railway Company )
(Fo rmer Southern Railway Company) )
Case No. 259 Award No. 259
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Richard K. Hanft, Chairman and Neutral Member
D. M. Pascarella, Employee Memb er
D. L. Kerby, Carrier Member
STATEME NT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
The Carrier's cancellation of all Mr. D. Boring's seniority rights and deeming that he had quit the se1v ice of the Norfolk So uthern Company and consideration of his record with the Company as being closed, as detailed in a letter dated Augus t 15, 2012 was in violation of the current working Agreement (Carrier's File M W ATLA-12-49-SG-.386 S O U).
As a consequence of the violation referred to in Part 1 above, Claimant D. Boring shall be made whole by being paid for all hours he would have worked beginning September 2, 2012 had the Carrier not improperly terminated the Claimant and refused to allow him to return to work."
FINDINGS:
Special Board of Ad just m ent 1049, upon the whole record and all of the evidence, find s 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 dispu te were given due notice of the hearing thereon and did participate therein.
This Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other cases.
Speci al Board of Adjustn1ent No. 1049
Award No. 259
After thoro ughly reviewing and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claimant in this matter was a Track Repairman Helper on Flash Butt Welding Truck #4 and held seniority back to May 7, 2005. T he events under consideration took place from June until August 2012. Thus, Claimant had already attained seven (7) years of seniority.
O n June 16, 2012 Claimant requested of his immediate supervisor and was granted a sixty (60) day leave commencing on July 2, 2012. Claimant's supervisor recalled that Claimant had inferred to him that the General D ivision Engineer ("GDE") was aware of and approved of Claimant' s request. As will beco me evident below, that was not necessarily tr ue.
O n June 20, 2012, the record reveals, Claimant sent an e-mail to his immediate supervisor stating that he would be " ... taking a leave of absence beginning July 2, 20 12 and will be returning to work no later than September 2, 2012... " Claimant's immediate superviso r never replied to the correspondence. There was, however, evidence that Claunant had verbally exp lained that he may need only six weeks to attend to his personal business, but would in any event, return no later than September 2, 2012.
On July 19, 2012, the GDE happ ened to be patrolling the area where Claimant's gang was working. Noticing that the gang was working short-handed, the GDE asked the welding supervisor why. When the welding supervisor explained that Claimant was on sixty (60) clay leave that he thought was approved by the GDE, he learned that the GD]•: knew nothing of it.
The GOE returned to his office and referenced the parties' Agreement to reacc.1uaint himself with the policies concerning leave. Upon researching Rule 44, the GD E ascertained that while Claimant's immediate supervisor had authority to grant leave of up to thirty (30) days ve rbally, leaves exceeding thirty days had to be given in writing by the supervisor, division engu1eer or other proper officer of the Company. Since the CL'liinant's immediate supe1visor did not have authority to grant sixty (60) days leave verbally, the GDE instructed the welding supervisor to contac t Claimant, explain that only thir ty (30) cla ys leave was approved and to direct hun to report for se1vice at the end of thirty (30) days on August 1, 2012. The welding supervisor did as instructed on July 30, 2012 directing Claunant to return to service on August 1, 2012.
Claunant advised the welding supervisor that he was not fmishcd with his personal business and could n ot re turn for another two weeks. Claimant failed to return as iJ.1structed on August 1, 2012.
Special Board of AdjusUT1ent No. 1049
Award No. 259
On August 15, 2012 Claimant received a letter from the Manager of Administrative Services notifying Claimant that because he had not returned to service at the end of his thirty (30) clay leave of absence, pursuant to the self-executing provisions of Rule 44 that he had forfeited all seniority rights and was deemed to have quit.
On August 23, 2012, the Organization, on Claimant's behalf, appealed the Carrier's action by letter to the Manager of Administrative Services and sent an appeal to the Genera l Division E ngineer on September 20, 2012.
The General D ivision E ngineer denied the Organization's appeal and the matter was appealed to the Chief Engineer, Program Maintenance, who conc urred with the GOJ •:'s denial of the Claim.
i\ fter being processed as described above on the property, up to and including denial of the claim by the highest Carrier official designated to hear appeals and discussio ns in conference, this dispute now comes before this Board for final adjudication.
This dispute between Carrier and the Organization presents a thorn y situation that is only complicated by the fact that there was no investigation held on the property and the only record for appellate review arc the letters exchanged between the parties. The Claimantin this matter has not had the opportunity to make a statement on the record and was really held to strict liability by a self-executing rule that goes into effect regardless of the circumstances of the situation. Moreover, the only evidence on this record supporting the Carrie r's position is a written statement by Claimant's immediate supervisor that was never sub ject to cross-examination.
The Carrier implies that Claimant falsely told his immediat e supe rvisor that the GD E knew about and appro ved his request for sixty (60) days leave. That has not been proven because neither Claimant nor his supervisor testified to that. Carrier further maintains that regardless, Claimant's immediate supervisor did not have authority to grant leave exceeding thirty (30) days duration verbally and that any suc h permission, by rule, had to be written. While that is true, Claimant and his supervisor did have a meeting of the minds: that Claimant was going to take a leave of between six (6) and eight (8) weeks and that is apparent from the e-mail that it is undisputed was sent by Claimant to his supervisor on June 20, 2012 and never negated or commented on. That e-mail cannot be construed, as the Organization avers, as written consent, but it is evidence of a meeting of the minds upo n which Claimant relied.
In reliance on the understanding Claimant had with his supervisor, he set about atten ding to the business that necessitated his leave. It was not until more than two weeks later that the GOE unwittingly happened upon Claimant's gang and discovered that he was on leave, unbeknownst to him, that dissection of the rule occurred. Claimant was ordered to return early from what he and his super viso r had arranged.
pccinl Bo.1nl of ,\djustml'llt r-.:o. !049
\wart.I o.159
Claimant foik·.d t1> rcpnn on 1\ ugust I, 2012. f ll' may h:a\'l · rhought that it was not compulsory or that it was unfair, hut the rule in lalxir/m::magcmcnr rdarinns is"ohcy now, rie,·e later". Cl:iimanr had a duty tu report :is instrnctnl and rhcn take up rhe matter of the order's 1mprnp nct)".
Tia· Board howcver, in pcmsing Rult· 44 docs not hd ,·e theintent of rhe rule is to address rhe situ.111on at h:ind. ·1 his was nor a circumstancl· of an employee :ah:andoning or walkin away from his position. hut rather a prc-arrangl-<l k-an: be1n cut shon.
(; iven rhe :,hove. the l\oar<l <lcrennitK-:. ro dispose of this m:iuer as follows:
(:l:1im:111t is to he rl·instan·<l wirhour compn1s:irion for rime our nf sen •ice . Claint:111t's -.enioriry shall Ix: restored to the point it was at on the d.1tc of rhe ,·iol:uion. Au st I.2012.
,\ W,\ RD :
Chim susrainc<l in :1ccor<lanc1: with the findings. Cnml·r i!I dsrecrnl ro make tlus
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Award dfecti,·e within rhirt)' (.'ti) days followin the llate two (2) mcmhn s of rhi l\o:m.l a ffo: 1ht.·i1 :-:i iattrrl'S thc·rt·to .
/ Richan! K . H:.mfr, Chainnan
D. f. P:iscare lla. Fmplorel' Me mlx·r D. L l-:1.·rby, C:arria Member
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