PUBLIC LAW BOARD NO. 4689
AWARD NO. 25 - CASE NO. 30
Raymond R. Hawkins
Chairman and Neutral Member
Byron A. Boyd, Jr.,Labor Member M. L. Janovec, Carrier Member
PARTIES TO DISPUTE:
UNITED TRANSPORTATION UNION (C&T
and
UNION PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of Brakeman R. G. Dietzman for expunction of the 30-day suspension assessed February 4, 1989, with pay for all time lost.
FINDINGS OF FACT:
The first paragraph of the Findings of Award No. 4, Case No. 4, is incorporated into, and made a part of, these Findings.
On January 23, 1989, Carrier addressed a Notice of Formal Investigation to Claimant notifying him to be present at a hearing on January 27, 1989, subject to the charges that follow:
(1) You allegedly failed to protect your position as a Brakeman between Kansas City and Marysville between August 19, 1988, and December 31, 1988, by being off an excessive amount of time.
(2) You allegedly failed to comply with both verbal and written instructions dated October 13, 1988, from Superintendent R. D. Naro to mark up and protect your position on a consistent basis.
The investigation was held as scheduled, and under date of February 3, 1989, Claimant was notified that he had violated Rules 600 and 604 of the General Code of Operating Rules. As a result, he was assessed a 30-day suspension. The Rules read as follows:
Rule 600. TO WHOM EMPLOYES REPORT. Employes whose duties are prescribed by these rules will report to and comply with instructions from the superintendent, and such others as may have the proper jurisdiction. They will comply with instructions issued by officers of the various branches of service when applicable to their duties.
Rule 604. DUTY - REPORTING OR ABSENCE. Employes must report for duty at the designated time and place. They must devote themselves exclusively to the Company's service while on duty. They must not absent themselves from duty, exchange duties, or substitute others in their place without proper authority.
Petitioner appealed in Claimant's behalf, alleging procedurally (a) the notice was improper, (b) Claimant was denied a fair hearing because Superintendent Naro testified at the Hearing, issued the discipline, and denied the appeal. With regard to merits, Petitioner alleged little or no substantial evidence was presented to support the charges: to the contrary. Claimant was not absent without proper authority, and he was the only employe to be singled out for discipline. Lastly, arguendo, the penalty was harsh and arbitrary.
Carrier denied the challenges made by Petitioner and asserted the charges were supported by substantial evidence.
The procedural challenges made by Petitioner have been considered and are found to be without merit. The remaining challenges will be considered below.
During the Hearing, Carrier stated that in the spring of 1988, Superintendent Naro (hereafter referred to as "the Superintendent") advised Claimant that he was not working a satisfactory number of days and that he needed to mark up and work more to protect his job on a full time basis. On October 13, 1988, the Superintendent addressed a letter to Claimant instructing him to mark up within three days and to protect his job on a regular basis. Further, Claimant was instructed to call the Superintendent's office if he could not comply with those instructions. There is testimony in the Hearing transcript that Claimant did not call the Superintendent's office prior to some of the lay offs; however, those incidents were not included in the charges, and are, therefore, not material to this Finding.
During the Hearing, the Superintendent was asked what he considered "a full time basis for a Brakeman on the Extra Board,' and what he considered "a regular full time basis for the Extra Board Brakeman." He replied (Transcript P 5):
. . . I would not consider it to be necessarily the number of days that an individual works as whether or not he was full time or part time. What I would consider on an Extra Board is that an individual should be marked up and available for work at least 80 per cent of the time.
I would think that an employee that is on the Extra Board that is marked up and available, taking into consideration his personal leave days and vacation days, at least 80 per cent of the time is a full time employe. Either on a monthly, weekly or yearly basic annualized bask. I don't know if we have Mr. Dietzman's entire 1988 record before us . . . but I do know that the time that I have been dealing with Mr. Dietzman and the period that we looked at, he has not even come close to 80 per cent.
To which Claimant's representative stated:
I have checked with Timekeeping and 88 records do reflect that Mr. Dietzman worked 26,381 miles which is basically 263 basic days. . . .
The Superintendent replied:
. . Mr. Dietzman's not charged with the entire year. (Emphasis added) He is charged with failure to protect his job and failure to protect, follow the instructions of the Superintendent . . . and he has not complied with those instructions since then.
The Superintendent was informed by Claimant's representative that "the Company has always had a policy of working one day and 30 days before the employe's considered absent from work without cause, and asked the Superintendent, "Is it Mr. Dietzman has worked at least one trip in each half of this period hasn't he?"
The Superintendent responded, 'Yes, he has. The Company has, in his Agreement, that he is to work one day out of each 30 to protect his senority. It is not the policy of the Company, . . . (Emphasis added)
Claimant testified that in his discussion with the Superintendent he was informed that the Superintendent did not want employees "out here that are sick. If you are sick, lay off. He said I didn't need to be here at that time when I was sick." In later testimony by the Superintendent he confirmed the essence of that part of his conversation with Claimant. In regard to the Superintendent's instructions to mark up and protect his position, Claimant replied, "I was marked up. I was working." These statements were not contested by the Carrier. Claimant further asserted he did protect his assignment on a regular basis, except when he was sick. Claimant testified, without contradiction, that he was off about 10 days during the period in question, with the Superintendent's permission, to answer a subpoena in another town. Furthermore, Claimant presented a "To Whom It May Concern" letter from his doctor dated January 24, 1989, stating Claimant suffered from non-insulin dependent diabetes mellitus, a condition which had been going on for at least several months. This evidence was not controverted by the Carrier and was accepted as Exhibit 5 to the Hearing record.
The Collective Bargaining Agreement pertaining to lay offs reads as follows:
(ii) Leave of Absence (a)
When yard or road employees are permitted to lay off they must not be absent in excess of 30 days without a written leave of absence, except in case of sickness or injury.
NOTE: It is understood that in case of illness or injury a leave of absence is not required.
Reviewing the so-called Company policy applying the 80 per cent rule for the first time during Claimant's Hearing, we find that the Carrier in its Submission at Page 1 informed the Board that the Superintendent "contacted Claimant Dietzman to advise him that he was not working a satisfactory number of days and his work record was inconsistent." (Emphasis added) Yet, the Superintendent testified at the Hearing that "I would not consider it to be necessarily the number of days that an individual works as whether or not he is full time or part time." (Emphasis added) Then he announced his 80 per cent requirement. Also, the Superintendent stated his formula could be figured on "a monthly, weekly, or yearly basis." Analyzing this method of determining percentage of availability using a weekly basis, an Extra Board employee could be disciplined even if he properly layed off under the Leave of Absence Agreement for two days in any week, regardless if he had not missed any other days the rest of the year.
It is not known whether the 80 per cent policy is a consistent policy for local, regional, or company-wide application. In view of the foregoing, it is found, and so held, the 80 per cent policy is vague and convicting. It was implemented for the first time in the February 3, 1989, hearing in an ex post facto manner without prior notification of its existence. The manner in which it was used in this dispute was an unfair application of authority.
Many Awards of the various Divisions of the National Railroad Adjustment Board have held that a Carrier may not make unilateral rules that conflict with the law on the provisions of the Collective Bargaining Agreement. See Second Division Award 1589, Fourth Division Award 780, and First Division Award 11287, and many more.
We find, and so hold, that the so-called 80 per cent policy as formulated by the Carrier in this case does conflict with the provisions of the Leave of Absence Agreement in that it attempts to apply restrictive provisions which were not negotiated into that Agreement by the authorized parties. The principle enunciated in the awards cited above is found to be applicable in the instant case.
Based upon a review of the entire record, it is found, and so held, that the Carrier did not prove by substantial evidence the charges against Claimant. Consequently, that part of the Claim to have Brakeman Dietzman's record cleared of this charge is sustained. The Claim for loss of wages is denied for the reason Rule 84 provides for loss of wages, if any. Claimant's absences were due to various reasons, including illness. There is no evidence in the record before us to permit the Board to arrive at a presumption that Claimant experienced any loss of earnings as a result of the improper suspension.
This Board in prior Awards sustained Carrier's action against Extra Board employees that moved their residences hundreds of miles from their home terminal. Such action made it impossible for them to comply with their responsibility under the Agreement. Those Awards are distinguishable from the instant case.
AWARD: Sustained in part as set forth in the Findings above.
ORDER: Carrier shall within 30 days from the date set forth below remove the notation of the 30-day suspension arising from this dispute from Claimant's personal record.
Raymond R. Hawkins
Chairman and Neutral Member
For the UTU
(C&T)
For the Carrier
Byron A. Boyd,Jr.
W. S. Hinckley
Vice
President
Director of Labor Relations
Date: 2/5/91
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CARRIER'S DISSENT
TO
AWARD NO. 25 OF PUBLIC LAW BOARD 4689
The Board has, in this case, created an "80 per cent policy" and then attributed its creation to the Carrier and finally found the policy to be outside the provisions of the Collective Bargaining Agreement.
The claimant was not charged with working less than 80 per cent of the time, but with failure to comply with the Superintendent's instructions to protect his "position on a consistent basis." During questioning in the hearing, the Superintendent was asked what he considered full-time employment. His answer of 80 per cent availability was an honest attempt to respond to the question and did not establish a Carrier Policy.
The real question before the Board was whether claimant's absenteeism was excessive and thus a failure to comply with instructions. If the Board believes that the Carrier failed to prove that the absences were not: legitimately taken, then it should so state.
W. S. Hinckley
Carrier Member