Special Board of Adjustment No. 956,
PARTIES Brotherhood of Maintenance of Way Employes
TO
DISPUTE: and
New Jersey Transit Rail Operations, Inc.
STATEMENT The dismissal of B & B Mechanic B. Miller was without
OF
CLAIM: just and sufficient cause. He shall be reinstated
without loss of compensation, seniority or vacation
rights, or any of the other benefits that were en
joyed by claimant prior to his dismissal.
FINDINGS: Claimant was absent from his position without permis
sion on Friday, January 10, 1986. At 8:40 a.m., 40
minutes after his scheduled starting time, claimant's
girlfriend communicated with the office by telephone
and asked that a personal day be given to claimant.
On the basis of these facts, considered in the light
of claimant's prior record and a waiver. signed by him on November 25,
1985, claimant was found guilty of excessive absenteeism and dis
missed from Carrier's service. Carrier points out that Rule 36-b-1
provides as follows:
"Personal leave days provided in Section (a) may be taken upon 48 hours
advance notice from the employe to
the proper agency officer provided,
-.f`
however, such dayp may be taken only
when consistent with the requirements
of the agency's service
...."
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q5~o-(1
We are satisfied that disciplinary action is warranted, even in the absence of any consideration of claimant's
prior record and the waiver mentioned by Carrier.., A fundamental
obligation of every employe, particularly in the railroad industry
where time schedules are so critical, is to be available to protect
his assignment.
In determining the measure of discipline, it was
appropriate for Carrier to take claimant's service record into
consideration. It shows that he had been suspended in 1983 for
sleeping on duty and twice in 1984 for absenteeism in January,
February, March, April and October 1984, he had thereafter been
given a first notice of absenteeism for January 14, 21 and 25,
1985 and a second notice for February 8, 13 and 21, 1985 absences.
Claimant's record also shows that on November 25,
1985, he agreed to waive the right to an investigation in connection with the first and second notices just mentioned and failure
to cover his assignment on May 9 and 31 as well as July 12 and 31
and August 1, 14, 15 and 18, 1985. Under the terms of the waiver,
claimant agreed to a rehabilitation period, inyhich he would seek
counseling, lasting until January 1, 1986. The waiver agreement
goes on to provide the following:
"At that time, you will be agreeable
to accepting immediate dismissal, which
is final and binding with no right of
appeal if my work with regard to performance, safety and attendance is not
immediately brought up to NJTRO standards; specifically no injuries because of rule violations, no tardiness,
no absenteeism and efficient and productive work practices. This waiver
for dismissal is to stay in place for
one year from January 1, 1986."
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Cl~o- l'1
Claimant's one-day absence, considered in the context of his entire record, provides a sound basis for heavy discipline. These circumstances do not warrant such,extreme disciplinary action as dismissal, even when proper weight is given to
claimant's waiver. The absence on January 10, 1986, in and of
itself, did not establish "absenteeism" and call for his dismissal.
Claimant must be afforded additional opportunity
to demonstrate that subsequent to January 1, 1986, his work in regard to "performance, safety and attendance" has been brought up
to NJTRO standards. He will be reinstated with seniority rights
unimpaired, but without back pay; the resulting long suspension
without pay will emphasize the gravity of his offense and the importance of prompt improvement in his attendance.
AWARD: Claimant reinstated without back pay. To be effect
ive within 30 days.
Adopted at Newark, N.J.
1
1987.
i
Ha 1d M.-~Weston- Chairmah
Carrier Member Employee Member