BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1122
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
(Metra)
NMB Case No. 25
This dispute involves Mr. Jesus Unzueta employed by Metra as Assistant
Track Foreman.
Mr. Unzueta was sent via first-class mail and certified-mail a letter dated
October 15, 2002, instructing him to attend a formal investigation on Thursday,
October 24, 2002, for the purpose of developing the facts, determine the cause,
and assess responsibility, if any, in connection with his alleged failure to protect
his position on Monday, October 7, 2002.
Mr. Unzueta was charged with alleged violation of Metra Employee
Conduct Rule "Q", Paragraph 1 and Metra's Special Instruction #1, Page I last
paragraph.
The letter of October 15, 2002, to Mr. Unzueta calling for the investigation
and the specific charge of the violation of the Carrier's Rules is attached to this
Award.
The investigation of Mr. Unzueta scheduled for October 24, 2002, was
postponed until October 31, 2002, and held on that date.
Following the investigation, Mr. Unzueta was sent a Notice of Discipline
letter dated November 18, 2002, assessing him discipline of dismissal from service
effective November 18, 2002.
The letter of November 18, 2002, is attached to this Award.
The transcript of the investigation held on October 31, 2002, provides the
basis for this Board's adjudication of this dispute.
This dispute is before this Special Board of Adjustment established by
agreement between the Brotherhood of Maintenance of Way Employes and the
Northeast Illinois Regional Commuter Railroad Corporation (Metra) dated
November 12, 1999. SBA No. 1122.
FINDINGS:
The Claimant in this case was charged with failing to protect his position
on Monday, October 7, 2002. While Monday normally was a rest day for the
Claimant, he had accepted an overtime assignment that day and was expected to
report for duty. The Claimant readily admitted that he did not report for work,
however, and the record shows that he did not request or receive permission to be
absent.
During the investigation on October 31, 2002, the Claimant explained that
he did not report for the overtime assignment because he was trying to take care of
some personal problems involving his family. He stated, however, that he knew
he was required to call in if he was not going to report for work.
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Based on the Claimant's own testimony, there can be no question that the
Claimant failed to protect his position. Therefore, the only question for the Board
to resolve is whether it was appropriate to terminate the Claimant's employment
for this infraction.
In considering this question, the Board first takes note of the Claimant's
record, which shows that he has worked in the Carrier's Track Department since
1993. Prior to 2001, the Claimant apparently had no discipline problems. Over
the past two years, however, he developed a serious attendance problem that
ultimately led to his dismissal. The Carrier attempted, through the application of
progressive discipline, to get the Claimant to correct his conduct, but as this most
recent incident shows, the threat of more severe discipline did not convince the
Claimant to change his behavior.
The Board also takes note of the decision rendered in our Award No. 20,
which upheld a 10-day suspension assessed when the Claimant was absent without
authority for three days earlier in 2002. In that Award, this Board stated:
". . .it
is
clear that Mr. Unzueta has failed to recognize the importance and necessity to
communicate with his supervisory officials concerning his unexplained absences
from duty without permission. . .Mr. Unzueta must soon recognize the dire
consequences of further incidents of failure to comply with Carrier Rules and
regulations."
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The Claimant, Mr. Jesus Unzueta, in this investigation stated that he was
sorry for his past behavior and would change his ways if he is given another
opportunity. We quote from Page 41 of the investigation transcript:
MR. UNZUETA: Well, I know I'm here,
coming here for missing days that I should be at work.
I know I've been having problems with my
marriage since a long time ago, especially from this
time when I got divorced from her, and the only thing I
worry about, I'm really worried about my son, he's I I
years old now, and I'm, myself, my passion for myself
is the Metra company, they would be understandable
to me, that I don't want to lose my job.
I want to work, because I've got a child to
support and myself.
The only thing I can say is I'm sorry for all my
past that- I missed so many days and if the company
can hear my statement, I know right now, Mr. Gage
and Rosales, they were okay, I was wrong, I should
have called in, but if Metra can give me another
opportunity to show them that I can make it, and then
that means no days and all the days I can, I'll work all
the days I can.
If they can give me my job, I promise myself
and I promise Metra that I'm going to do real good,
because I know when I say I'll do it, I do it.
So, that's all I can say.
Normally, this Board would not consider an employee with such a
deplorable record to be a worthy candidate for reinstatement. However, in this
case, it is clear that the Claimant's attendance problems have been due in part to
some personal difficulties involving his family. Accordingly, the Board believes
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that the Claimant should be given one final opportunity to show that he can be a
reliable and productive employee.
Accordingly, it is the determination of the Board that the Claimant shall be
returned to service with his seniority and all other rights unimpaired, but without
pay for lost time. The Claimant shall be placed in a probationary status for one
year following his return to work. During such time, he will be subject to
termination for violation of Carrier rules or policies on the same basis as a newly
hired, probationary employee.
Prior to returning to service, the Claimant will be required to refer himself
to the Carrier's Employee Assistance Program and participate in any counseling or
treatment program prescribed through the EAP. Failure to comply with the
recommendations of the EAP will result in the Claimant's permanent dismissal.
The Claimant is placed on notice that this will be his last opportunity to
salvage his career as a Carrier employee.
AWARD:
Claim partially sustained in accordance with the above findings.
g c4,(
Charles J. ChUnberlain
Neutral Member
Date G~ l ?-003
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October 15, 2002
US MAIL AND CERTIFIED MAIL #7000 1670 0003 4409 8724
Mr. Jesus Unzueta
14001 S. Western Avenue, Lot #309
Blue Island, IL 60406
Dear Mr. Unzueta:
You are hereby instructed to attend a formal investigation which will be held on Thursday,
October 24, 2002 at 9:00 a.m. in the Office of Director of Engineering, 2067 West 123rd Street, Blue
Island, Illinois 60406.
The purpose of this investigation is to develop the facts, determine the cause and assess responsibility, if
any, in connection with your alleged failure to protect your position on Monday, October 7, 2002.
Therefore you are hereby charged with alleged violation of Employee Conduct Rule "Q", Paragraph #1
and Special Instruction #1, Page
1,
last paragraph. Your work record, a copy of which is attached, will
be reviewed at this investigation.
You may be represented at the subject investigation, as provided for in your Labor Agreement, and you
will be afforded the opportunity to present evidence and testimony in your behalf and to cross-examine
any witnesses testifying.
Yours truly,
aliirector
Rock Island Engineering
MR/dm
cc: V. L. Stoner
W. K. Tupper _ _
G. Washington ~ ~. It
`l~ 1.l''
J. Barton
C. Cary
M.S.Wimmer, G/C
F. Kmiec - L/C
R. Gage - Please appear as Corporate Witness
J. Rosales - Please appear as Corporate Witness
I hereby acknowledge receipt of the original of this letter.
-
Signed _ Date
Metra is the registered service mark for the Northeast Illinois Regional Commuter Railroad Corporation.
NORTHEAST ILLINOIS COMMUTER RAILROAD CORPORATION
SSA _ 11Q Q.
NOTICE OF DISCIPLINE
A
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Name & address of supervisor assessing discipline:
W.K. Tupper
Chief Engineering Officer
547 W. Jackson Boulevard
Chicago, Illinois 60661
November 18, 2002
CERTIFIED MAIL #7000 2510 0009 2865 1043
470
:It Z0 AON 61
Mr. Jesus Unzueta
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14001 S. Western Avenue, Lot #309
Blue Island, IL 60406
The result of the investigation of October 31, 2002 has revealed your responsibility in
connection with the violation of Metra Employee Conduct Rule "Q", Paragraph # 1 and
Special Instruction # 1, Page # 1, last paragraph. Therefore you are hereby assessed the
following discipline which will also be entered on your personal record:
( ) 1. Formal reprimand (letter of particular attached).
( ) 2. Three (3) days deferred suspension (with waiver one (1) day deferred)
which will remain in effect for two (2) years and must be served as actual
suspension if additional discipline is assessed during those years.
( ) 3. Five (5) work days actual suspension (with waiver three (3) days plus deferred
from Step 2).
( ) 3a. Your record indicates a deferred suspension of 3 days which was
assessed on and must be served in conjunction with discipline
outlined above.
Suspension will begin and end . You must return to work
on . Failure to return to work on that date will be treated as an
unauthorized absence.
( ) 4. Ten (10) work days actual suspension (with waiver seven (7) days).
Suspension will begin and end . You must return to work on
Failure to return to work on that date will be treated as an
unauthorized absence.
(X) 5. Dismissal. Your employment relationship with this Corporation is
terminated and your record closed November 18, 2002. You must
immediately return all company property to Moses Richardson, Rock
Island District, 2067
. 123rd St eet, Blue Island, IL 60406.
Signature 8s Title of Supervisor assessing discipline