On September 22, 1991, Claimant J. Sorrentino 'was performing services for Carrier. As a result of his injury, Claimant did not return to work until May 7, 1993. Carrier ultimately compensated him a large number of sick days in connection with his injury and absences related to its
Claimant subsequently pursued his rights to recover for his injury under the Federal Employers Liability Act (FELA). On June 6, 1995, a jury awarded Claimant $25,025_00 for past wages and benefits; $14,370.00 for past medical expenses for disc injuries; $2,472.00 for medical expenses for a thyroid injury and $13,000
In a motion progressed subsequent to the award, Carrier sought to offset the amount of jury awarded damages with medical benefits that had already been paid to Claimant. This motion was denied in an order dated June 16, 1995. On June 22, 1995, Carrier filed a motion for reconsideration. The motion for reconsideration was also denied and it was ordered that the judgement be rendered in the amount of $54,867.
A series of additional legal motions were made involving carrier's asserted right to offset Claimant's sick leave payments. On November 14, 1995, District Court Judge Goettel denied Carrier's motion to satisfy from the judgement defendant's lien for sick leave benefits.
On. December 8, 1995, Carrier's General Superintendent of Transportation wrote Claimant demanding reimbursement of the funds at issue. Specifically, the letter stated as follows:
letter of December s. Accordingly, by letter dated January 2, 1996, Carrier instituted charges against Claimant as follows:
The investigation was subsequently postponed on a number of occasions while the parties engaged in discussions concerning the matter. The organization offered to arbitrate, in an expedited fashion, the issue of Claimant's obligation to reimburse Carrier, and if so, the amount of the debt. Carrier agreed to arbitration of the issue of Claimant's obligation to repay the debt, outside of a disciplinary hearing, with the condition that a promissory note be executed to insure Carrier an avenue to collect such monies if it prevailed at arbitration. Claimant refused to agree to this condition.
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Carrier argues as follows: the trial was properly held in absentia. There is no question that Claimant was given a reasonable opportunity to appear at trial. The record is also clear that pursuant to Rule 44, Section 6 of the Agreement, carrier is entitled to reimbursement of the sick leave monies expended on behalf of Claimant. While the Organization has argued that Carrier's right to collect its lien was waived because the lien was not timely filed with the court, Carrier's right to reimbursement of sick leave benefits is a contractually negotiated entitlement which is not governed by a judicial procedure and cannot be waived by a procedural error in litigation. In addition, the issue of sick leave benefits was never substantively addressed by the Court. It is further clear that Claimant has not complied with the directive contained in the letter dated December 8, 1995 to repay the money at issue. Claimant has therefore been insubordinate in fulfilling his basic employment obligation to reimburse Carrier for money he received and to which he is not entitled. Claimant was also completely uncooperative when discussions were held to resolve the issue in arbitration. Carrier's requirement that a bond be posted in order to assure payment in the event it won the case was entirely reasonable since the Carrier was attempting to avoid having to litigate a collection procedure in court if it won. To the extent the Organization is disputing the monetary amount owed in this case, it is not addressing the claimant's insubordination. If Claimant is claiming that there is a legitimate dispute
regarding the amount of money at issue, the appropriate response would be for Claimant to have tendered payment of a lesser amount. Finally, dismissal is an appropriate penalty for Claimant's misconduct. In effect, Claimant is guilty of the embezzlement of $29,000 from the Company and must, therefore, be punished accordingly. Claimant had ample opportunity to take actions that could have preserved his employment and could have allowed him to continue to contest the matter. As Claimant did not allow that to occur, termination was Carrier's only option. The Organization argues as follows: Claimant was denied due
taken. The instruction placed such an extraordinary burden on Claimant, one which he could not possibly meet, at least not in the time frame initially allowed, that it was simply unreasonably on its face. Additionally, it was impossible for Claimant to comply with this instruction inasmuch as the amount demanded, even using the lesser of the amounts, which is still not clear on the record, far exceeded the amount of the judgement with respect to the portion of the judgement on which Carrier based its alleged offset right. Thus, Carriers' demand in this regard was tantamount to "shaking down" Claimant for the privilege of working. In addition, it is clear that Carrier had other less drastic means available to resolve this dispute. The organization offered to bring the issue to expedited arbitration. =n addition, carrier routinely garners engineer's pay to satisfy prior payments. It ,is therefore clear that Carrier was interested in retaliating against Claimant for bringing an FELA action, not recovering money from him. Finally, the discipline assessed against Claimant is excessive. Claimant was a 25 year employee with only one contested formal reprimand in his record. The Board must therefore issue a sustaining award in favor of the organization and reinstate Claimant with full back pay including interest, penalties, and reimbursement for medical coverage and seniority fully restored.
At the root of this matter is a dispute over Agreement interpretation. More specifically, Carrier asserts that it 7
maintains a right under the Agreement to deduct from Claimant's FELA recovery the value of the sick leave allowance it has paid to Claimant as a result of his injury. Claimant and the Organization contend that Carrier does not possess such a right of recovery against Claimant.
The instant claim, however, is not one directly involving this matter of Agreement interpretation. Rather, the instant claim involves a matter of discipline. More specifically, carrier discharged Claimant for failing to reimburse Carrier for salary advance as ordered in the letter of December 8, 1995.
In analyzing and deciding the claim filed in response tothe direction set forth in the letter of December 8, 1995 were the Board to find that order arbitrary, unreasonable, and/or impossible to comply with.
it is critical that all parties fully understand this principle. Employees cannot have any understanding that they are normally privileged not to follow an instruction from Carrier merely because they perceive that instruction is not based upon a sound interpretation of the Agreement.
In order to make this principle clear, the Board finds it not only unnecessary, but unadvisable, to here resolve the Agreement interpretation issue concerning Rule 44 as the bedrock for its determination concerning the propriety of the claimant's discharge. Rather, the Board will at this time express no opinion as to the Agreement interpretation issue but rather limit its analysis for purposes of this case to the propriety of the discharge irrespective of whose interpretation of the Agreement is correct.
Turning to that matter of discipline, it is only after careful consideration that the Board determines that the claim should be sustained. While it is true that Claimant did not reimburse Carrier $38,427.34 within ten days of receipt of Carriers letter of December 8, 1995, as directed therein, the Board finds that under the totality of the circumstances here present the order was arbitrary, unreasonable and/or impossible to comply with.
of disputed the Board's appropriate
Carrier had far less drastic options available to it in order to seek to enforce its perceived rights under the Agreement. For example, it could have sought to garnish Claimant 0s future wages in a reasonable fashion, as it has apparently done on other occasions with employees with whom it believes owe money. If the Claimant was in disagreement with the garnishing of wages, he then could have filed a claim, properly bringing the dispute to the Hoard as a matter of Agreement interpretation.
Furthermore, as stressed by the organization, Carrier had available to it the option of proceeding to expedited arbitration on this matter. Carrier rejected this option solely because Claimant would not meet its precondition that he execute a promissory note to insure Carrier an avenue of collection if it prevailed at arbitration.
for proceeding
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Some question whether the charged party, usually the carrier, will pay the amount owed if the charging party prevails. Nonetheless, the Board is aware of no case where a promissory note needed to be posted as a precondition to arbitrate.
Finally, the Board believes that it was unnecessary and unfortunate that carrier proceeded forward with the investigation in the absence of Claimant. While Claimant's exact physical condition at the time of the investigation is not altogether clear, it is clear that when the investigation occurred Claimant was off duty due to an injury. Rule 23 (d)(3) allows for extension of all time limits when the principal is off due to temporary disability. Moreover, the Board is unaware of any reason which required urgency in bringing the matter to conclusion in August, 1996.
In sum, Claimant, a 25 year employee with a virtually unblemished work record, should riot have lost his means of livelihood as a result of Carrier trying to enforce ,its interpretation of the Agreement. The instant claim will therefore be sustained, absent interest and penalties.
Finally, the Board recognizes that its determination leaves unresolved the Agreement interpretation dispute concerning whether Carrier maintains a right of reimbursement against Claimant, and if so, how much. These are matters which the Board is willing to address promptly should they properly be placed before it for resolution.