SPECIAL BOARD OP ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. 140
and ) CASE NO. 140
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
STATEMENT OF CLAIM:
The Organization requests that the discipline (30-day suspension) assessed to
Mr. H. Santana be expunged from his record, and that he be made whole for all
financial losses suffered in connection with this discipline.
Special Board of Adjustment No. 956, upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employes within the meaning
of the Railway Labor Act, as amended; that the Board has jurisdiction over the
dispute herein; and that the parties to the dispute were given due notice of the
hearing and did participate therein.
In early August, 2006, Claimant submitted a written request to his
supervisor to take a leave of absence on September 7, 8 and 11, 2006. His supervisor,
D. Gotay, testified that he responded that the Claimant would be required to
exhaust any personal and/or vacation days in conjunction with the leave. Since the
Claimant had two vacation days remaining, Supervisor Gotay indicated that the
first two days of the leave request would be covered by vacation days, leaving only
one day to be excused.
Instead, the Claimant used his two vacation days on August 14 and
September 5, 2006. Moreover, despite the fact that he had not obtained approval for
the requested leave of absence, according to Supervisor Gotay, the Claimant failed
to cover his assignment on September 7, 8 and 11, 2006.
The Claimant testified that he thought he had permission to take a leave of
absence. He stated:
Well, you know I requested leave of absence way ahead of time. I told Mr.
Gotay before my trip, I used to go up to him to hand in the letter. He told me
don't worry about it, you still got time Mr. Santana. I'm going to hand it in
to Lee, that never happened. So as the time came for my trip I figured you
S.B.A. No. 956 Award No. 140
Page 2 Case No. 140
know maybe they gave it to me, you know the leave of absence. And I just
went and I left and I went to go see my mother.
Claimant was charged with being absent without permission and violating
the terms of Carrier's attendance policy. After a hearing on the matter, which was
held on October 24, 2006, Claimant was issued a thirty-day suspension.
The Organization filed the instant claim appealing the discipline. The
Organization contends that the Claimant properly submitted a leave request well in
advance of the date of leave and, absent any indication from the Carrier that the
request had been denied, he reasonably believed that it was appropriate for him to
mark off on September 7, 8 and 11, 2006. The Organization maintains that the
Claimant provided credible testimony on that particular point. Moreover, the
Organization submits that Supervisor Gotay did not follow the required procedure
in that he admittedly failed to forward the Claimant's leave of absence request to
higher level supervision.
The Carrier denied the appeal and this claim is now before the Board.
In reaching a proper determination in the instant case, the Board notes at the
outset that it is the function of the hearing officer to resolve credibility conflicts in
the record. The Board does not make factual findings nor do we decide the
credibility of witnesses. Our review is of an appellate nature. That being the case, we
have reviewed the evidence and testimony and we find that there is sufficient
evidence to warrant the finding that Supervisor Gotay was credible and that the
Claimant knew or reasonably should have known that he had no permission to
absent himself on September 7, 8 and 11, 2006. Claimant most assuredly was aware
that he had no remaining vacation days to cover any part of his absence. Moreover,
Claimant admittedly had not obtained approval for his leave request. The fact that
the leave request was not denied is not tantamount to approval.
It is true that Supervisor Gotay did not forward the Claimant's leave request
but that does not change the result in this case. Based on his conversation with the
Claimant, Supervisor Gotay concluded that the Claimant was going to use his two
remaining days of vacation to cover part of his absence and therefore only one day
of leave would be required. Supervisor Gotay testified without contradiction that he
had the authority to approve a single day of unauthorized absence. It was the
Claimant's responsibility to inform supervision that the circumstances had changed
and that his two vacation days were used to cover other absences. He did not do so.
Claimant was in violation of Carrier's attendance policy when he marked off his
assignment without any authorization on the dates in question.
S.B.A. No. 956 Award No. 140
Page 3 Case No. 140
Once this Board has determined that there is substantial evidence in the
record to support the guilty finding, we neat turn our attention to the type of
discipline imposed. The Board will not set aside a Carrier's imposition of discipline
unless we find its action to have been unreasonable, arbitrary or capricious.
The Claimant's previous record indicates that he has been counseled,
warned and disciplined for violations of Carrier's attendance policy. Only several
months prior to the incident at bar, in May 2006, Claimant had been issued a fifteen
day suspension for being absent without permission and demonstrating
noncompliance with the attendance policy. Under the circumstances, a thirty-day
suspension in this case falls within the realm of reasonable corrective discipline for
the demonstrated misconduct.
Based on all the foregoing, the claim must be denied.
Claim denied.
ANN S.
KENIS
Neutral Member
n
J
ta ~Ier Member Organization
ted this,! ay of , 2008.