NATIONAL MEDIATION BOARD
WASHINGTON, DC
SPECIAL BOARD OF ADJUSTMENT 986
NATIONAL RAILROAD PASSENGER CORPORATION
(AMTRAK) - NORTHEAST CONFERENCE ("CARRIER")
AND
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
NMB Case No. 281
Employee: Jason Ornelas
Neutral Member: Barbara Zausner
Carrier Member: Richard Palmer
Organization Member: Jed Dodd
STATEMENT OF CLAIM
I- The dismissal of Claimant Mr. J. Ornelas for alleged violation(s)
of Amtrak's Standards of Excellence, Attending to Duties
section; Professional and Personal Conduct - Teamwork section;
and of the National System Attendance Policy for all Amtrak
Agreement-Governed Employees, Section D, Progressive
Counseling and Discipline, is excessive, unwarranted and in
violation of the Agreement (System File BMWE-540-D).
2- As a consequence of the violation referenced in Part I above, Mr.
Ornelas shall be immediately returned to service, the alleged
charges shall be expunged from his personal record and that he
shall be compensated for all straight time and overtime, and
benefits lost from May 24, 2007 and continuing until this
violation ceases to exist.
I
SBA No. 986 Award No. 281
FINDINGS
Upon the whole record and on the evidence, the Board finds that
the parties herein are Carrier and Employer within the meaning of the
Railway Labor Act, as amended; that this Board has jurisdiction over the
dispute, and that the parties were given due notice of the hearing.
The Claimant, Jason Ornelas, was an Assistant Foreman. He was
absent from duty on November 1, 6, 7, 27, and December 4, 2006. The
absences, when added to his prior record, exceeded ten days and
constituted excessive absenteeism. His prior record of discipline
includes a written warning, a three day suspension, a ten day
suspension and an Alcohol and Drug Waiver agreement signed by the
Claimant on July 5, 2006.
According to the Carrier, Mr. Ornelas "clearly was advised that his
absences were unacceptable and that future violations would result in
more serious discipline up to and including dismissal." It cites the
National System Attendance Policy under which certain excused
absences are not counted as occurrences. The Claimants absences for
"assignments" with EAP do not fall into that category. Further, the
Claimant did not qualify for FMLA. The Carrier points to numerous
awards of this Board holding that the Carrier may dismiss employees for
excessive absenteeism.
The Organization points out that the Claimant was enrolled in the
EAP and participated in classes under that program. His daughter was
SBA No. 986 Award No. 281
diagnosed with a heart murmur that required numerous doctor's
appointments and examinations. The Claimant's wife had to have
emergency surgery for gallbladder problems. Those factors resulted in
many of the Claimant's absences. The Organization contends the
Claimant contacted his supervisor and requested permission for the
absences.
During the investigation, the Claimant provided documentation to
substantiate his absences in 2006. There is no dispute about the
number of absences or the fact that the Claimant was excessively absent.
Nevertheless, the Organization argues that dismissal is inappropriate
under the circumstances. The Claimant's absences were justifiable.
In Case 100, SBA No. 986, Neutral Board Member Meyers observed
that following progressive discipline and a failure of an employee to
correct his record, "a Carrier has a right to decide that an employee who
cannot show up for work can be discharged." Such a decision is not
arbitrary, capricious or unreasonable. Cases 138, 150, 153 and 167 of
this Board were decided similarly.
Awards submitted by the Claimant are distinguishable. Award
7754 speaks to absences "validly justified and excused for good and
sufficient reason." The absences at issue were appropriately counted as
occurrences under the policy. In Award 19589, the form of the charge
"signifie[d] that if the person accused can show that he was not
responsible for the absences because of reasons beyond his control ... he
SBA No. 986 Award No. 281
would not be subject to discipline." The Board found for the claimant in
the absence of proof of the charge.
The record in this case establishes that the Claimant is guilty of
the charges. Despite counseling and progressive discipline, the Claimant
was unable to conform his attendance record with the Carrier's
requirements. At some point, an employer has the right to determine
that an employee is unable or unwilling to meet its attendance
requirements and to dismiss the employee on that basis. Nothing in this
record supports the Organization's request to set aside the disciplinary
action.
SBA No. 986 Award No. 281
AWARD
The claim is denied.
I
Barbara Zausner, Neutral Board Member
May 31, 2010
G~d
For the Carrier
Richard F. Palmer, Director - Labor Relations
For the Organization
JedDodd,GeneralChairman