PLB 3080 Award 13

CONSOLIDATED RAIL CORPORATION
VS.
UNITED TRANSPORTATION UNION (C-I

STATEMENT OF CLAIM: Appeal the discipline of dismissal assessed against Mr. M. G. Pfaffenberger as a result of an investigation held on October 14. 1980. It is the consensus of the Committee that Mr. Pfaffenberger was unfairly disciplined; and we ask that he be reinstated to the service of Conrail immediately, with pay for all time lost, and with full seniority and vacation rights unimpaired1 including all fringe benefits retroactive from the date of his dismissal.

STATEMENT OF FACTS: Claimant was discharged after investigation pursuant to notice to Claimant and for the stated purpose to determine the responsibility, If any, in connection with your alleged failure to comply with the instructions of Trainmaster Weir at July 22, 1980, to mark up and work on a regular basis and October 1, 2, 3, 4, and 5, 1980, Detroit, Michigan. If any additional witnesses are desired, you may so arrange without added expense to this company."

Notice of Discipline read as follows:
An investigation was conducted with you in Room 103, Conrail Station, 2405 West Vernor, Detroit, Michigan, at 8:30 A.M., on Tuesday, October 14, 1980, to determine the responsibility, if any, in connection with your alleged failure to comply with the instructions of Trainmaster Weir at conference of July 22, 1980, to mark up and work on a regular basis and your continued absenteeism of October 1, 2, 3, 4, and 5, Detroit, Michigan.

A review of the transcript of the investigation discloses that the above charge, as stated, was sustained. For your responsibility in this matter you are hereby dismissed from any and all service of the Consolidated Rail Corporation. Please arrange to turn in all company property and/or passes to G. G. Stoddard, Supervisor of Crew Assignments, Room 137, 2405 West Vernor Highway, Detroit, Michigan.

The full essence of the complaint against Mr. Pfaffenberger is set out in the following testimony:

MR. ENGELIEN TO MR. WEIR:
Q. Mr. Weir, would you state for the record your name and position with the company?
A. My name is Bob Weir, Trainmaster, Detroit Division.

Q. Mr. Weir, regarding the alleged failure of Mr. Pfaffenberger to comply with your instructions, would you relate what took place between yourself and Mr. Pfaffenberger on July 22?
A. On July the 22nd. I had a meeting in Room 103 with Mr. Pfaffenberger, and I explained to him that, according to the W-2 earnings for 1978, he'd only earned $5,286.00, and for 1979. he had earned $11,427.00, and the year-to-date, 1980, which would have been ?3une, he only earned $2,540.00, and according to these records, that he was marking off excessively, and I explained to Mr. Pfaffenberger, and Conrail had an attendance program where it required all regularly assigned employees to work their positions as scheduled, which meant that any employee holding a five-day work week was expected to work five days, and all extra board and pool freight were required to protect the needs of service, cover the service when called.  And under the attendance program, supervisors are responsible for achieving regularity in attendance. When an employee exhibits an attendance problem, he is entitled to receive counseling and other assistance.

Also, on that date, Mr. Pfaffenberger was told that when an employee applies to the Railroad, it's for the purpose of attaining full time employment. We do not hire part time employees, and I know of no waiver to this prerequisite, and it is reasonable to require all employees to work full time as a condition of employment. And Mr. Pfaffenberger advised me at that tine, the reason he wasn't working full time, his wife was working and did not need the financial benefits of working full time. It was explained to him that this was inexcusable to the Railroad. That was about the conclusion of our meeting on July 22nd.

Q.. Did Mr. Pfaffenberger indicate that he would try to work with more regularity in the future?
A. At that time, Mr. Pfaffenberger did say yes, he would mark up more regularly. * * *

MR. ENGELIEN TO MR. STODDARD:
Q. Mr. Stoddard, would you state for the record your name and position with the company?
A. Gary Stoddard, Supervisor, Crew Assignments.

Q. Mr. Stoddard, regarding the absenteeism of Mr. Pfaffenberger, do you have any records which state what days Mr. Pfaffenberger has missed?
A. Yes, I do.

Q. Would you enter that, or would you --
A. Our records indicate that an September 9th, 1980, Mr. Pfaffenberger marked off for two weeks for reasons unknown, and did not mark up until October 7th, 1980, at 2:25 p.m.

FINDINGS: The record will not support discipline of Mr. Pfaffenberger. It is incongruous that Carrier would allow an employee to mark off and then discipline such employee, and it is not enough to advise employees that they are expected to be full-time and to work a five day week and then discharge them because they mark off frequently with Carrier permission. If an employee is risking discharge or discipline by exercising a privilege freely granted by his employer such risk must be clearly made known to the employee. Excessive excused absenteeism is not the same as excessive unexcused absenteeism. Carrier has the right to refuse an employe's request to mark off and should do so or forfeit the right to discipline such employee for absenting himself with permission.

AWARD: Claim sustained. Carrier shall make this award effective within thirty days from date hereof.

Neutral Member DAVID H. BROWN
Detroit, Michigan
May 25, 1982