AWARD NO. 7
                                                       CASE NO. 7
PUBLIC LAW BOARD NO. 5142

 


 PARTIES  UNITED TRANSPORTATION UNION
 TO
 DISPUTE  UNION PACIFIC RAILROAD
          (FORMER MISSOURI PACIFIC UPPER LINES)

  STATEMENT OF CLAIM                          

 Claim of Switchman J. W. Dean               informed Claimant as follows:  
 for all time lost account being
 improperly disciplined. Claim               It has been brought to my attention that
 includes payment for all wage               in the past ten weeks beginning April 1,
 equivalents to which entitled,              1989, you have been working an
 including monetary equivalent of            average of four days or less per week
 lost productivity shares, with all          and you are not alone in that respect,
 medical, surgical, life and dental          There are a total of twelve extra
 benefits, and for monetary loss             switchmen averaging working four
 for such coverage while                     days or less per week.
 improperly disciplined. All                 
 notations of said discipline are to         The Union Pacific Railroad cannot
 be removed from the Claimant's              afford part time employees waiting on
 record.                                     the Railroad. Therefore, I am
                                             instructing you to properly protect your
 Organization File: DF-221-972               assignment as a switchman on the Extra 
                                             Board at North Little Rock, Arkansas.
 Carrier File: 9003916
                                             If you have any questions concerning
 OPINION OF BOARD                            these instructions apply them to me now
                                             for explanation.
 As a result of a notice of 
 investigation dated June 25, 1990,          By letter of September 20, 1989,
 investigation ultimately held on July       Hefley again wrote Claimant about his
 18, 1990 and by notice dated July 25,       absenteeism:
 1990, Claimant, a Switchman with 12
 years seniority, was dismissed from         This letter is in reference to your poor
 service for failure to comply with          performance of protecting your job with
 instructions to reduce excessive            the Union Pacific Railroad. From July 8,
 absenteeism and protect his assignment      1980 thru September 22, 1989, you have
 on a full time basis.                       been unavailable a total of 30 days or
                                             or 44% of the time. This is not accep-
 The record reveals that Claimant has        tabIe to the Union Pacific Railroad. We
 had an absenteeism problem for some         will no longer tolerate any employees 
 time. By letter of June 19, 1989, the       working part time when they are full time
 Carrier, by Superintendent S. L. Hafley,    employees.

 
                                             This letter will serve as instruction to
                                             you that I will no longer tolerate anyone
PLB 5142, Award 7 
J. W. Dean 
Page 2

 abusing the system only protecting             control and that was the reason why
 their job part time. You must protect          I had to be off. ...
 your assignment five days per week. I
 will be personally tracking your            Q. But the instructions from the
 performance for tie next 30 days and           Superintendent was to work 80% of
 your failure to comply with my                 the time. Is that correct?
 instructions will leave me with no
 alternative but to schedule a formal        A. That's what he said, at least 80% of
 investigation and place responsibility          the time.
 where it lies.
                                             Even though Hefley gave specific
 If you have any questions or comments       instructions in March 1990 to Claimant
 concerning this letter, please feel free    to mark up and be available for work
 to contact me and I will set up             80% of the time, during the period April
 appointment to discuss any questions or     29, 1990 through June 28, 1990, Claimant
 comments you may have.                      was unavailable for work 27.47% of the 
                                             time.
 See no failure to comply with my  
 instructions.                               The record also reveals that Claimant
                                             has been disciplined in the past for
 The record further reveals that             absence related conduct on January 9, 
 Hefley again met with Claimant              1989 Claimant agreed to take a 15 day
 concerning his absence record wherein       deferred suspension for failing to be
 Claimant was again given specific           available when called. As shown by
 instructions concerning the need to         letter of January 27, 1989, Claimant was
 improve his absence record, Claimant        assessed a 30 day actual suspension for
 testified that be had a conference in       failing to comply with instructions
 March or April 1990 with Superintendent     issued to him on July 15, 1988 to make
 Hefley (Tr. 4-5):                           himself available to work as a
                                             Switchman. That letter further indicated
 Q. So Mr. Hefley, the Superintendent,       that because Claimant's prior 15 day
    conferenced you about your               deferred suspension had not cleared, that
    excessive absenteeism and that was       Claimant was required to serve a 45 day
    back in March of this year?              actual suspension.
 A. April. March, somewhere there. I 
    don't know when exactly.                 In this matter, Claimant was
                                             specifically charged in the notice of
 Q. What did he tell you at that time?       investigation and ultimately dismissed
 A. Told me to stay marked up more at        for "failure to comply with instructions
    least 80% of the time.                   to reduce your excessive absenteeism
                                             and protect your assignment as
 Q. At least 80% of the time? 
 A. Right. 

 
 Q. Okay. Have you been marked up at 
    least 80% of the time since then? 
 A. No, l haven't but I have excuses. I 
    had those circumstances beyond my

 
PLB 5142, Award 7 
J. W. Dean 
Page 3

 
 Switchman on a full time basis ...." The    Q. Do you have any documents to
 threshold question is to determine what        support that?
 instructions were given to Claimant by      A. Yes.
 Superintendent Hefley. While the notice
 of Investigation speaks of an instruction        
 to "reduce your excessive absenteeism",     Q. Mr. Pennington this Crew
 the evidence shows that instruction to         Dispatching Work Record shows
 be more specific. Claimant's unrefuted         total days unavailable 27.47%. Is
 testimony clearly shows that Hefley            that correct?
 specifically instructed Claimant that he    A. Yes.
 had to be marked up 80% of the time.
 Again, according to Claimant (Tr. 4):       That 80% standard is further evident
                                             from the fact that although the notices of
 Q. What did he [Superintendent              investigation and dismissal speak of the
    Hefley] tell you at that time?           failure of Claimant to reduce excessive
 A. Told me to stay marked up at             absenteeism, the record shows that
    least 80% of the time.                   Claimant had reduced his absence record
                                             from past periods. The September 20,
 Q. At least 80% of the time?                1989 letter from Superintendent Hefley
 A. Right.                                   to Claimant states that "From July 8,
                                             1989, thru September 12,1989, you have
 It is also clear from the record that       been unavailable a total of 30 days or
 the 80% cutoff was the standard utilized    44% of the time." During the period at
 by the Carrier in determining whether       issue in this matter, Claimant's record
 Claimant should be charged. According       showed a 27.47% absence rate.
 to Manager Yard Industry Operations R.      Therefore, improvement from the past
 Pennington (Tr. 7):                         has been demonstrated - but that
                                             improvement did not meet the 80%
 Q. Mr. Pennington, Mr. Dean has             standard set by Superintendent Halley. 1/
    stated in this investigation that he     ______________________________
    has had a conference with the            1/
    Superintendent concerning his            The fact that an 80% standard was used in
    absenteeism and that he was              this case was not contested by the Carrier.
    instructed by the Superintendent to      See Car. Submission at 9, 11, 20 ("The 
    stay marked up 30% of the time,          Claimant has been instructed to improve his
    Mr. Dean has stated that this            job protection performance to below 20%
    conference took place sometime in        unavailability ... The Claimant per his own
    March of this year. Mr. Pennington       testimony indicates he understood he was to 
    has Mr. Dean been marked up and          improve his work record to at least 80%
    available for work 80% of the time       availability ... In the instant case the
    since on or about March of 1990?         Claimant very clearly knew that he was  
    required                                 to improve his work record to below 20%
    A. No, Sir.                              unavailability for service."). That standards
                                             further set forth in the Carrier's [footnote
                                             cont'd]
 
PLB 5142, Award 7 
J. W. Dean 
Page 4
 Thus, the record sufficiently shows         Board found that the Carrier win
 that in this case the Carrier utilized      applying an 80% standard and sustained
 a standard requiring Claimant to be         the claim. According to that Board:
 available 80% of the time and dismissed
 Claimant for failing to meet that           Many Awards of the various
 standard. The question now is whether       Divisions of the National Railroad
 Adjustment Board have held that a           Carrier may, not make unilateral rules
 the Carrier can utilize such a standard.    that conflict with the law on the
 The Organization argues that in light       provisions of the Collective Bargaining
 the existing Agreements between the         of Agreement. See Second Division
 parties, the unilateral promulgation of     Award 1589. Fourth Division Award
 an 80% standard is in conflict with those   780, and First Division Award 11287,
 Agreements. We agree.                       and many more.

 
 The relevant provisions state:              We find, and so hold, that the so-
                                             cited 80 per cent policy - formulated
 Laying Off And Leave Of Absence             by the Carrier in this does conflict
                                             with the provisions of the Leave of
     *      *       *                        Absence Agreement in that it attempts
                                             to apply restrictive provision, which
 1. When employes in train service are       were not negotiated into that Agreement
    permitted to lay off, they must not      by the authorized parties. The principle
    be absent in excess of 30 days,          enunciated in the awards cited above is
    except in case of sickness or injury,    found to be applicable in the instant
    without having formal leave, in          case.
    writing, granted in accordance with
    the provisions of this Agreement.        Given that holding in PLB 4689,
                                             Award 25 between the parties, the
     *      *       *                        narrow question before this Board is not
                                             whether we would decide that case in the
          Article 8                          same manner. Rather, the question is
          Laying Off                         whether that award is palpably erroneous.
                                             We find it is not. It is not palpably
 Yardmen will be permitted to lay off        erroneous to conclude that in
 when extra men are available.               light of the negotiated Agreement
                                             provisions set forth above that the
 In PLB 4689, Award 25 between the           unilateral promulgation and use of an
 parties, an employee was suspended for      80% availability standard in this case
 failing to comply with verbal and written   is in conflict with those rules. 2/
 instructions to mark up and protect his     _________________________________ 
 position on a consistent basis. That        2/ In its dissent to Award 25, the Carrier
 _________________________________           asserted that the Board therein, and not the
 letter of April 26, 1991 ("You were         Carrier, "created an '80 per cent policy'" and
 advised that the Claimant had been          that 80% availability standard was only the
 instructed by the Superintendent to         result of questioning at the hearing of the
 stay marked up at least 80% of              superintendent and his response concerning 80%
 the time.                                   was an honest attempt to [footnote cont'd]
 
 
PLB 5142, Award 7 
J. W. Dean 
Page 5
 Therefore, because the record suffi-        hold in this matter is that, consistent with
 ciently reveals that the Carrier uti-       the prior award between the parties, the
 lized an 80% availability standard in       Carrier improperly established and
 determining whether Claimant adhered to     implemented an 80% standard of
 the instructions given to him to reduce     unavailability to determine if Claimant
 his excessive absenteeism, we find that     was excessively absent.
 substantial evidence does not support the
 Carriers decision to dismiss Claimant. 3/   The awards cited by the Carrier are
                                             also not dispositive of the narrow issue
 The Carrier's arguments do not              before us. See PLB 5082, Awards 5 and
 change the result.                          7; PLB 1324, Award 46; Second
                                             Division Award 12159. Those awards
 The Carrier asserts that the Agree-         discuss the necessity for employees to        
 ment does not give an employee an           avoid being excessively absent and the
 unfettered or unrestricted right to lay     right of the Carrier to take disciplinary
 off. We do not hold that the Agreement      action for excessive absences. We have
 gives employees such a right. All we        no quarrel with the logic of those awards
 _________________________________           and we agree with the conclusions of
 respond to the question and did not         those awards that the Carrier can
 establish a Carrier Policy". However,       discipline employees who are
 in this matter the record clearly esta-     excessively absent. Indeed, for those
 blishes the 80% level to be a policy        awards that are between the parties,
 (at least as applied in this case) in       those conclusions are entitled to the
 that Superintendent Hefley specifically     same due deference discussed earlier
 told Claimant that he had to maintain an    because they are not palpably erroneous.
 80% availability level and the Carrier
 in its submission repeatedly emphasized     But those awards do not address the
 the failure of Claimant to maintain         narrow issue that faces us - i.e., the
 that level. See note 1, supra.              unilateral establishment of an 80%
 3/                                          standard to determine if the employee is
 In this regard, because of the improper     excessively absent The prior award
 usage of an 80% standard, we cannot         between the parties (PLB 4689, Award
 find that nevertheless Claimant's           25) specifically address that question
 absence record for the period in            and, inasmuch as that determination is
 question was excessive. The burden in       not palpably erroneous, that award
 a discipline case is upon the Carrier.      governs this dispute.
 Given our findings concerning the 80%
 standard, we cannot substitute our          Finally, we do not find that the
 judgement for what the Carrier              Carrier could have taken the disciplinary
 might otherwise have done had it not        action against Claimant because he
 utilized that 80% Standard. That would      failed to call Superintendent Hefley
 amount to speculation on our part. In       personally when he was absent. No
 any event, once the 80% standard falls,     reference can he found in the dismissal
 what we are left with is a record           notice to the fact that Claimant failed to
 showing instructions given to Claimant      personally call Hefley. The record
 improve his absence record and a            sufficiently establishes that the
 subsequent improvement from 44% un-         overriding consideration in disciplining
 availability to 27.47% unavailability.      Claimant was because he did not meet
 In other words, once the 80% standard       the 80% availability standard - a
 falls, the record shows that Claimant       standard that we find cannot be applied.
 complied with the given instructions
 and improved his absence record - a
 fact recognized by the Carrier.  See
 Car. Submission at 9 ("The Claimant's
 Job protection performance went from
 44% unavailability to 27.47% 
 unavailability.").

 
 AWARD

 
 Claim sustained.

 

 
 Edwin H. Benn
 Neutral Member

 
 W. E. Naro
 Carrier Member

 

 
 M. B. Futhey, Jr.
 Organization Member
 Chicago, Illinois
 Dated: June 4, 1992