SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. 145
and ) CASE NO. 145
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
The Organization requests that the discipline (30-day suspension) assessed to
Mr. J. Oliva be expunged from his record, and that he be made whole for all
financial losses suffered in connection with this discipline.
FINDINGS:
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.
There is no dispute about the facts giving rise to this claim. The Claimant
failed to work his entire tour of duty on February 16 and April 2, 2007. On April 4,
2007, he did not present himself for work. He was charged with being absent
without permission and violating the terms of Carrier's attendance policy. A
hearing on the matter was held on May 22, 2007. Subsequently, Claimant was
issued a thirty-day suspension.
Carrier contends that there is no basis to disturb the discipline assessed in
the instant case. Carrier argues that it expects and must have employees come to
work on a consistent and regular basis. The Carrier cannot operate efficiently if it
cannot depend on its workforce to report for work.
In the instant case, the Carrier argues that the Claimant has a record of
corrective discipline for attendance infractions. After chronicling Claimant's history
of absenteeism, Carrier points out that he has been counseled, warned and
disciplined on multiple occasions. Regardless of the legitimacy of the Claimant's
reasons for being tardy, not reporting for work and leaving early, Carrier maintains
that it has the right to enforce its expectation of regular attendance consistent with
the attendance policy. Given the circumstances, Carrier argues that a thirty-day
suspension was an appropriate measure of discipline and hardly constitutes an
abuse of discretion under these facts.
S.B.A. No. 956 Award No. 145
Page 2 Case No. 145
The Organization argues that there were bona fide reasons for the
Claimant's attendance difficulties. Transportation issues and family emergencies
were the reasons cited by the Claimant. On April 4, 2007, Claimant stated that he
did telephone a co-worker to advise that he would not be reporting for work. In the
Organization's view, the Carrier abused its discretion when it failed to recognize
that there were extenuating circumstances beyond the Claimant's control which
prevented him from protecting his job assignment.
After careful review of the record in its entirety, we find that substantial
evidence exists to support the discipline imposed. Under the Carrier's attendance
policy, employees are expected to cover their bulletined job assignments. This is
necessary in order for the Carrier to provide reliable and efficient service. The
status of any employee whose performance is impaired because of continued
absence is evaluated under the policy, consistent with individual circumstances and
the employee's job performance record.
As established in many awards throughout this industry, the legitimacy of
one of more absences does not necessarily relieve the employee of a charge of an
unsatisfactory record of attendance over an extended period. Claimant admitted
that he understood the application of the attendance policy when he testified:
...Unfortunately what's here it's pretty cut and dry, it's in black and white
and it's all true. I mean I have reasons for why this happened but
unfortunately like you said the policy is really cut and dry and I can't deny
any of it. I just hope that I can have some leniency and hope that they take
my testimony from before can be taken into account my reasons and I hope
that I get some sort of leniency but I have to go with what has to transpire.
The record in the instant case shows that the Claimant has been verbally
counseled, warned and disciplined on multiple occasions for violations of the
attendance policy. Clearly, the Claimant has amassed an unsatisfactory record of
attendance. The Board finds that the Carrier acted reasonably and within its
authority to enforce attendance standards and that the resulting disciplinary
penalty was fully appropriate and consistent with the tenets of progressive
discipline.
Finally, leniency is the prerogative of the Carrier, not the Board. We have no
authority to extend leniency. Based on the proven charges and the Claimant's
overall attendance record, we have no alternative but to deny the claim.
S.B.A. No. 956 Award No. 145
Page 3 Case No. 145
AWARD
Claim denied.
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ANN S. KENIS
Dated this oday of
u~'
, 2008.