PUBLIC LAW BOARD NO. 4998

Award No. 103
UTU File 245-1422-254
UP File 1019212

Parties    United Transportation Union
to                   and
Dispute    Union Pacific Railroad Company
         (Central & South Central District)

Statement  of Claim: Request removal of Level 2 (which resulted in Level 4) assessed to Los Angeles Switchman  G Johnson, and pay for any time lost. 
  
          
Findings:  The Board has of this case by reason of the parties Agreement establishing this Board therefor.

The Claimant, Los Angeles Switchman G. Johnson, on March 14, 1996 was charged:

you were counseled regarding your absenteeism and the abuse of layoff status. You were instructed to make improvement. You were also counseled on April 25, 1995, February 14, 1995, February 12, 1994, April 27, 1993 and July 17, 1990. A recent review of your record indicates you have continued to abuse the layoff status.

Therefore, report to the Office of Superintendent,... for an investigation and hearing to develop the facts and place individual responsibility, if any in connection with the following charge:

That while assigned as Switchman on the Union Pacific Railroad at Los Angeles, California, you allegedly failed to follow instructions regarding the abuse of layoff gatus and had been exceedingly absent since being instructed, indicating a possible violation of General Code of Operating Rules effective April 10, 1994 ......

The Carrier concluded that the Claimant was culpable of the charge placed against him. However, because of the status of his personal discipline, record Level 3, the discipline imposed was upgraded to a Level 4. The appeal is therefrom.

The Claimant was accorded the due process to which entitled under his discipline rule. The  notice was timely sent and clearly expressed. The Claimant was accorded a representative and faced his accusers. He exercised the right of appeal.

There was sufficient evidence adduced to support the conclusions reached by Carrier as to the Claimant's culpability of the charges placed against him. Contrary to the UTU Local Chairman's understanding and protest the precise charge at the hearing being held read:

" ... you allegedly failed to follow instructions regarding the abuse of layoff status and have been excessively absent since being instructed."

The evidence reflected that the Claimant has been talked to, he had been counseled concerning problems about absenteeism, weekend layoffs, and excessive layoffs. Correspondence in connection with that counseling reflected that the Claimant attended a meeting, for which he was paid to attend, to try to address and resolve problems concerning his job protection attitude, habits and/or excessive absenteeism without showing improvement in his work record.

In an effort to improve the Claimant's continual absenteeism and abuse of lay off status, the Carrier afforded the Claimant six (6) specific and specified counselling sessions thereon during the period July 17, 1990 through March 14, 1996. A reflection of his non improvement is seen in the Claimant's record during the 91 day period preceding this investigation. The Claimant, commencing from April 4, 1996 was absent 46 days. He was therefore unavailable to perform service 51.24% of the time. Such percentage is intolerable and represents by any reasonable interpretation excessive absenteeism. Transcript Exhibit 4 from MTO Jones to the Claimant on February 14, 1995 read:

"In reviewing work records recently, I have found that your layoff practices are inconsistent with the majority of the work force, especially your frequent lay-offs on weekend days. Union Pacific needs your services on a consistent and reliable basis. We cannot hope to achieve our goals in quality customer service and run on-time trains without a dependable work force. Your individual work record reflects the following layoffs:

From October 18, 1994 to January 19, 1995 Unavailable 11 times on weekends: LS-06 LK-04 LP-01

Be advised I will continue to monitor your work record, I expect it to improve immediately or you may be subject to disciplinary action. If you have a medical condition that you feel is affecting your availability, please advise me as soon as possible.  If you wish to discuss this matter further, please call me as soon as possible."

The Claimant was thereby placed on notice of the consequence if there was no immediate improvement in his absenteeism and lay off record.  No improvement %was shown as demonstrated by transcript and Exhibit 5 in the 91 day period, April 2, 1996 to July 1, 1996. Thus, this investigation became inevitable.

The UTU offered Award No. 3 of PL13 5719 (Lynch) in support of its position. Referee Lynch field:

"that Carrier's Manager of Operating Practices does not possess the authority to amend the existing rules and working conditions agreement by attempting to propose standards such as those here involved."

No reasonable person can disagree with that conclusion. However, that was not the issue here. Referee Lynch also did find in that case, which is applicable here, that:

"The Board would be remiss in its obligations if it did not note that the Claimant here is building an unenviable record of laying off sick and would urge that he take whatever remedial action is necessary to correct this problem. Carrier does have the right to expect its employees to be available for service and employees who are consistent in laying off create problems for the railroad and for their fellow employees who must count on them to carry their share of the work load."

A well accepted contractual axiom in the railroad industry is that except to the extent that the Carrier chooses to contractually limit its rights to manage its operation and issue reasonable rules and instructions to accomplished that but which are not in conflict with Schedule Agreement rules. It recognized such axiom from Award No. I of PLB 2991 which held:

"It is well settled that a Carrier has the right to make reasonable rules in the furtherance of the orderly and efficient conduct of its business, so long as such rules are not inconsistent with or in violation of the collectively bargained agreements it has entered into with labor Organizations. In this connection, it is obvious that Carrier has a right to make reasonable rules and regulations regarding employee attendance at work. That there may have been considerable laxity by previous supervisors in the enforcement of proper rules governing such matter cannot be considered to mean or imply that Carrier had given up an inherent managerial responsibility, and that it was prohibited from instituting changes in the application and enforcement of rules and to take steps to hold employees accountable for absences from work.

Even absent explicit or implied rules and regulations on the subject, it has many times been held that an employee has an obligation to report for work with a high degree of regularity."

Referee Peterson therein also cited Referee Dolnick's finding in NRAB 2" Division Award No. 6706 concerning excessive absenteeism that

"Claimant was absent 28 days out of about 80 scheduled working days in less than four months, or about 35% of the time. That is excessive absenteeism under any acceptable definition. Even if he was excused on half of the days, His absent record of 17.5% is also excessive."

And

"...We will not unsettle what is already established, principally, that Carrier may properly hold its employees accountable for excessive abuse of the mark off privilege or what might otherwise be termed excessive absenteeism."

The Board finds that the Claimant was accorded the due process to which entitled under his discipline rule (Rule 48). There were no procedural objections taken.

There was sufficient and competent evidence adduced at the July 1, 1996 investigation to support Carrier's July 8, 1996 conclusion of culpability of the charge contained in the June 26, 1996 Notice of Investigation and hearing. The charge was clear and concise, and in part read:

" ... you allegedly failed to follow instructions regarding the abuse of layoff status and have been excessively absent since being instructed."

The Claimant's denials of receiving any counselling sessions or of receiving instructions to improve his attendance behavior were belied by his implied admission at T- 1 8 that his attendance had not changed in 17 years, that he has no impending days with problems and that transcript Exhibits 3-4 and 5, all demonstrated to the contrary.

The discipline imposed was issued in accordance with Carrier's UPGRADE Policy and is found to be reasonable. The Claimant at best can only be deemed a part time employee. The Board can serve no other useful purpose than to advise this Claimant that this record and his work record stand as harbinger of the pitfall lying ahead if there is no immediate corrective action.

This claim will be denied.

Award: Claim denied.

R. E. Carter, Employee Member               D. J. Gonzales, Carrier Member

Arthur T. Van Wart, Chairman and Neutral Member