SPECIAL BG??.'D CF ZDJTJSTMENT 1063
In the `Tart=- of t:^.e =_rhitr_- -_-
NGP.F'vLK SGUT:iE?.DT R!.ILT9"f
CGMc: .\7-Y
and
BROTgFR-HOCD
OF LOCOMOTIVE -\==:,'I:
DlIM3 Case No. 429
Claim of D.E. Velat
ST?.TEb1ENT OF CLAIM: Claim c_' -.-__~_nia D_visioR Engi -a_=r D.E.
for YeiRS=atem=__C t0 service-
-.v_=__
all _^.2: ..f1tS restored pd· f,
dRG
all !-_Ol2
iG5
t __. COnneC--c=
..-=R
the Car_..eY'
S
Char
g2
that ne
=ailed t0 CCmp-.T
Witn
1RS=__C.==_nS t0 ma-_ntain 3n
acceptable
'.JCr:i
rECGL:;.
FINDINGS OF
THE
BOARD: _ __ =_aYd
finds t`:at the Carrier and
ya:
_:.dt1Cn are, reSpEC=_'._-.__ Carrier and GrgaR-Zat-O=Lr
_RC
C-1 dl.ad:'~t(5) -mYIG_iEES '.J1t_=-_=
7__e
-lednl_·^_g
of
t=_c Rai! way Labor Ac-C,
as amended, that this -=and is duly constituted and has
'urisd_ctidR over the part-=:,
claim
and subject matter herein, u'~ and
that the parties were a_-:= ___ -ctice
C_
t:12 hearing which was
held on March 2 ,, 2002 a= _:__f.._'t, Virginia. Claimant was not
present at t_=a hearing. 'nGard makes the following additional
findi-cs:
__,= CarYlEr and Grga__==G._Gn are Part =ES t0
d
C0112COyJe
bdYgc1=1iWg agreement which
-d0
_e=n in 2_ieCL at all times reievant
t0
t:.iS
dispute, CGVEr1n g z -a Carrier's 2mpl O:T°e5 is the Engin2°-'
S
craft.
Claimant Entered to
Carrier's
e-y.1cy in train service en
November 19, 1989, and was p_=_-,oted to Locomotive Engineer in
Gctcber of 1992. Claimant :,as regularly assigned to the Radford
Division
road extra board _n
=__=t
Capacity
until he was dismissed
or, SCDtE^LLEr 24, 2001 for ____
alleged
excessive absent-' sr.j.
G:u FL.gilst 28, 2001, Cla__..a___
'v735
directed t0 art°='1d
3
fCr^:al
inVeSt-.natiGn 1_^. CGnrieC-c_C
R
'.J==_7
i'71 S
al
lEC2d
"failure t0
CCRI.^av
w'th
(tRe Ccrr_=='S( ins
W_C=-G___
t0 main tai-
do
dCCeCtd-lE
'..1C_..
was
-3,
-001, dur_nc~
G
JJ'_
and 15 times
in
the
.C1[R G_
'_
SEA 1063
Case No. 429, D.E. Velat
Page No. 2
board was usa=isfactory, _-__ specifically .noted occasions when he
personally de=-i-rered verbal -.,Tarn-ngs to Claimant on April 20, July
^o,
and July 31, 2001. ;iced-_i : did allow at page 23 of the
_
transcript that Claimant
..-~
.~a= very personable type cuy, very
nice, and a J?r_I good engineer", and testified that he elected not
t0 invoke mCr°_ severe
C-~.SC -'=1-.~
on those occasions because he
wanted
Claimant
t0 know ":=^-.; -;-c_-_
(- 2u
cared about him". SJCOd1.__7
asserted, however, that
--c ---._.
,.--`Orm Claimant exact='y what wCU-_d
be expected of h1^l (=n tar='.S
C- -.iS
aV.ai13~C-aity ior ser-T-Ce) is
the fULUr°_, and cited a le---_
O-
understanding signed
bV·'
Claimant
upon his prcmc-ion to enai n- _e--..7-ce in NoTe-Ler, 1-909 which stated
in per tine^_L z part as
I Unders-and and afire--e. -na- the duties of -P-a posit-ion
for which I am an app=izan- require that I use proper and
constant car=_ tc avc-d --1-ry...
I further understar-d -__az -^e railway company operates
SEVy:d JA-CS PYR G~Ect, _·.--:_=-=CUR HCURS ?ER DAY, and that
I will work when (Emphasis as originally
presented)
In his t=stimony, Cla-_--.~_.- offered no substantive excuse for
his ex·CeSSiv_ absentee_S"-,
d'--
alluded to an n "unreasonable
expectation"
C_1
-he par- .._ Carrier that 1-.e be available for
service, Upon rest, for e:1--ended periods of time withOUt daVS off.
Claimant'
S
"^-bbrevia--d -nDloyee Profile" was also made a
matter of record, which ccn_L_in.3 the f0l10-wing pertinent
2 - - -O 7
r = c
a_-._
--.fe _t_
c____3
--_ rred sus-c _ensior. (_,-,q G_ive d
hearing) - -lare to protect assignment
6-23-98 Letter of
1r-StrUCtiC:
work recur:
11-1_-G9 Wen dv= ;_
- P =i
^V.1_ c
-i .-Ci7LA `l W i --.
u: accecL------ ..~r~
isc=i.
~-'7-CO
'P=T;
dolls d°-=_r?~ SuscensiO-^- ('.JaiTcd ^e-.
- Failure to ccmplv with
2=-__, 1993, l:.naCCepLc....^1e
rrjpeWinn ('.J·3iJ·V-'-~.. he-=r--'=)
SBA 1063
Case No. 429,
Page No. 3
~ Veldt
~·,·
l ett=r dated S =C7=--r __ G =, 2001, Claimant was dismissed,
and in due course,
d
cic_m -.__ ._=s reinstatement wassubmitted.
The Carrier denied t::e c_a-___ and as resolution of the matter could
not be reached cn to a prop ertv,
_C
was submitted t0 the Board for
disposition.
POSITICNS O= THE PARTIES: T^e Carrier argues that Claimant was
guilty
of
the charge, and =_______ that 015m15sal,upcn the whole
of
the record, :vas waLranteG. __s -_ the met-t o- i_ts Charge against
Claimant, the Carrier re__=s .:__ aC52ntlally undiSput°_d crew calling
records indicazine that _-=-_..a__= was unavailacle for nearly onehalf cf his -octen=ial _.._~ ~:.__= board star=s in both July and
August, 2001.
The
Car--__ _ =s out that Ciaiman.- received
numerous (dGC'1men teC) warn--- as
C. =d=
h15 repeated LTlavd-1 abll ity for
duty was unaGGeptable, yet :=a c___=_nued to -ay off, particularly on
weekends, due to alleged i___._os. The Carrier argues that Claimant
offered no -further axpId-a ti:=for proof of chronic illness, nor did
he produce evidence that _^_= was
under the care
,of
a physician.
T'_:2 Carrier cites a n>>-==r of prior arbitration awards
supporting discip~ine and __s...-ssdl for excessive absenteeism,
among which was ?-Hard _:, of _E3 5944 (U'1'J v DI&W,
Pete=son,
Neutral).
'^:=dt d2cisic:. s=at=_ in pertinent part:
In the cciniGn of
.h2
3..=--d, it does of necessarily
follow that because _ -_ =cific need exists for tine
estdblishrment of do Element of measurement for the
application of rules swch as those mentioned above that
in the absen-
O.
d C:_le'.'_C-'iely bargained rule that the
Carrier aces not have t=:e right to hold, as here, that an
employee be available for work on a regular, full time
basis, Cr to Ot-ler'iJ--d2 attendance ioolicies and
Procedures tGr tit
...==_C_E._=
...::d economical operation of
1t5
SEr'T1CES.
T__.E
Carrier argues __-__
=-_C,
"5O3i dalld.:il_tj
'.S
Clearly not
',corking on
d
regular, ___.._ basis", and insists
in
accordance
with t.:2 a'ccve A-,,=d __-= 2·T2n in the absence
or
a bargained
attendance C=anGa_C, -- rv=.~ ~''SL1-fed _n --Old_ng
Cl-.'__^.1cI'a
i
ac== =ani2
-~_ _r -c
-=_a-_- ~,=-3Jaliabls__tj =-_~_ CoO_ _ -__^_ h-.:
d55_~.^,ilEd L4-hGllZ
SBA 1053
Case No. 429, D.z. 'Jelat
Pace No. 4
t:ha_ ex,-,BCtazion. T.'_°_ Carrier argues that Claimant '.Jas afforded
ample oppor tun- _'!
LO COr r
e
C=
___a p-rc-blen behavior after numerous
Verbal warnings and ;-.acre -^r-a_ O_SOiplinary action, yet he failed
C
do
SO.
Cn'Lha_ bass, ___e Carrier
maintains
thaw dismissal was
its only remaining ODticn, and urges the Board -,:o denv tae claii.l 1.n
1t5 2-'_tiret2
-= a Carr_C_ act=` harsh1v in
dismiSSing Cl ai-ant, whom _ _ __Scrihes as a "re=a=^'T°_1
v
long term
employee" and "a
Very
CCCd cn ___~_r". The 0rgani_za_icn points cut
tae C_ai.'aant was last
disc=:ip __
ned for pco- attendance in 1 9.9, a.^.d
conci'-,Ges that whatever event=s
_c___
_tate·d that par
__Cul
ar action
(and -hose precc__ i=) were -.___=.SSew, rectified, a-d shculdnOW
be barred ircm _cens-deratIc n ___ t=_,_ instant
ma=ter.
The Organ=_3t'-On als3 a=ueS that the Carrier offered n0
evidence that Claimant was
no--, i=:
fact, '_11 On all da-es he marked
off. on this ccini., the orga___Z=_4On acknowledges that the Carrier
is juszified in requiring _=s c-:D10',ieeS
'CO
mdlnzaln a "good_ word
record, but asserts that t'he Carrier, too, has an obligation "to
ensure that all employees (incl'.:ding Cia-want) are in good health
and have d sense
O:
Well-:OC-n=. 1::
50
arguing, the Organization
concludes that t`.e Carrier ==_le; to satisfy its burden to prove
--,:) be C-Claimant
7
iss rest___ - available fo.t rer·y_i:2n= of his res-,cnsibilitv
--,:)
be available for du-.1i,
and urges the Board to susta_- ___.. c=aim.
the entire record, the
Board is convinced that while z:=a Carrier had good reason to. take
some action
against
Claimant, the penaltv of dismissal was unduly
harsh.
As to the organization's argur,?ent that the Carrier failed to
prove Claimant was not ill as -e alleged, the Board concludes that
the Carrier was nest bound, .._ _.a0_ ___ th'iS Case,
~O SO
demonstrate
in order to prevail. C1aima-t was not charged with falsifying
claims that h°_ Was 1.11,
__ =Or
his failure
t0
sati5_`v his
Oblicfation as a fi311-Lime e^:·_ _?e off- the Carries; an Obligation he
himself recoani^ed when he s'' =he'd hiis 1_t7er
O=
understanding
c_
tile L'_=ne o- his `om0=ion
_a_n _.__
S2rV_ce. Gn `l_ -'-s point, _ -e
rcard a000_.-___ _-_°_-On ._.,.a__'-7 ana__Js_S, and _.. indeed persuad=d
=JLi.:il
-Lime aid__a_.___i.'y' during the m0=the of July
The Crganization argues
DISCUSSION AND ANALYSIS: G_^_ __ bas=s o=
SBA
1053
Case
No. 429,
D.E.
Velat
Page
VC. S
:ie='~ SeL_-eu
(,
G
r _ ._..=.a
_.
purpcse
of
discipline is
as
..ocsed
to being merely punitive; and
=n2 BOa_ _`. ==Suade·.: L_.G=
..._,___
u".,~a_.Z:a_^.t
_^d
L_.2
Carrier
WCUid
bene=_=
=_G·.T..
,:.
_2S=.,_eG' _ _ _ --c'e^
.Ol
C~O_
r2! aL10R5lp. the Board
aSS',_.'·.;eS
r D'~i ; -_ =,le O=
L:'_c
y_' S L,:.R _ claim,
that Clai-ma= seeks to
=in
_._S
e:^._._G'=:ui_'-__T=t and =_._=
RdS
-lo honor h15 CO.ili'llt1e'<?L 51".Ollld 1'1e
7reT%~_4 i CG--_-__-, on tie .,=__e_ ha-d, is on record as appreGidti
h
g
C 1
a~-_'.La%L'
S·
p e=jORa012
dLL==~=:.".°
and Sk i__
aS
an engineer.
r=r~.e,i,.
-__ - =~,-~ Claimant's
The_,._,._~, as the fo__~w___-: _-_ward reflects, cna
d=saissai is he=2'^y res,__-.ced, c a_=__ the addi__ona_ admonition to
Clal_u:a_^_- Lea=
s__Cl=_
a__·' _,_t___
_.__iCi1
gd-^Su
___:M C= t22--'s .c'LL-=~
be brCL:Ch
L
to t -5 Board, t
ha
._=__=er'
S
dGC'.iuLeRLed ..peGLa=iOn that
rte be a'Tai:aG_e -Gr Ser-TiCe » needed
W1__
be 511.7GOrteG'.'
AWARD: a'Ra C_a-m
r
Cla-iilldi_L 5 a'·Ta_'_cD1_.lyi was __..,= aCCeptdD~e and C115CiD1=n2 was
.r
appr:prld't=. .__.S_^..15Sal
.W._,
_:weVar, excessive. Cldlmda^.~
S
dic.i
c
sa_l_
S%.,_
a=_' --FrosC_:_._r_:c_n~^ , ___~ _____ pe,_i :d o- c-la'a-an-'s absence
corrected
u0
a
dl
Sc1,'O11-larY .'~-.=-Ge^S-_OR
0.~.
30Ca`JS a-1G tile remainder
to lea-re withcet oa-J. Cia__-.a~.c shall be reinstated with a!--'L
S2n10=1._J
r.CRLS
il:uiiitpa_r.'~-_d, without pay or henefizs for the
p2r1Cd
of
h1
S
Clali=antls persona- record shall be amended
t0
SO
ref.
?. DaJ-C1 T%al_;
R^,
Neutral ~amr e=
i
A
Z/Z/-~
R.
Wea-70r, ,.arrler i?E=-e_
_ . T.
Sorrow, B'mplevee 1L2_mber