CARRIER FILE NO. 1160955
ORGANIZATION FILE NO. D0694

PUBLIC LAW BOARD NO. 5912

PARTIES TO DISPUTE:

UNITED TRANSPORTATION UNION

           Vs                                NMB CASE NO. 143
                                             AWARD NO. 143

UNION PACIFIC RAILROAD CO.

STATEMENT OF CLAIM:

Claim of North Platte Conductor R. E. Meza, Jr. for reinstatement to service with all rights unimpaired, pay for all time and benefits lost and removal of Level 5 discipline from his personal record.

FINDINGS AND OPINION:

The Carrier and the Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act, as amended, This Board has jurisdiction of the dispute here involved.

The parties to this dispute were given due notice of hearing thereon.

Claimant was summoned for formal investigation, held on October 8, 1998, on a charge that he failed to make acceptable improvement in his job protection. During the investigation it was developed that claimant had been counseled about his availability for work and that he had been disciplined on two prior occasions; i.e., on July 15, 1998, he was assessed Level 1 discipline and on September 016, 1998, he was assessed Level 2 discipline--both occasions involved failure to make acceptable improvement in his job protection, resulting in excessive absenteeism.

Following the investigation on October 8, 1998, Carrier found claimant to be in violation of Operating Rules 1.15 and 1.6 as well as Item 10-A(1-15) in System Special Instructions effective June 1, 1998, and assessed Level 5 discipline (dismissal from service) under the progressive discipline provisions of the UPGRADE Discipline Policy. This policy provides:

"If an employee commits three repetitions of the same rule infraction during a 36 month period (excluding missed calls and tardiness) the discipline assessed will be at Level 5-Permanent Dismissal."

It is the position of the carrier before this Board that the action it took was justified due to claimants deplorable attendance record, plus the fact that his attendance record failed to improve following the counseling sessions and the prior occasions in July and September when he was disciplined for the same offense.

The Organization has argued that claimant was not available for service due to sickness and a prior injury resulting from an automobile accident. Mile these reasons were touched upon during the investigation, claimant at no time offered evidence that the illness and/or injury were sufficient to account for his unavailability for service. The organization has directed the attention of this Board to the applicable Leave of Absence Rule which clearly provides a leave of absence is not required in case of illness or injury and, in addition, that such rule specifically provides, "if requested by the Carrier in writing, with a copy to the local chairman, employees must furnish documentation from their physicians giving specifics of the illness or injury and the expected duration of absence." It is the position of the Organization that the obligation to secure documentation of an illness or injury rests with the Carrier, not the employee.

This Board has given consideration to this Organization argument, but do not find it to be applicable to the instant case.  The record before the Board is exceptionally clear that claimant had been counseled on more than one occasion during 1997 and 1998 concerning his attendance record, and the record is also clear that his Local Chairman was in attendance on at least one of such counseling sessions. Despite such counseling, claimant's attendance record did not improve and he was summoned for formal investigation in July of 1998 and was disciplined. There was still no improvement and he was again summoned for formal investigation in September of 1998 and was again assessed discipline.

It is appears to this Board that claimant was afforded ample opportunity to consider his availability record and to show some improvement, or to specifically notify Carrier that he was unable to be available for service due to illness or injury. Had he done so, and if Carrier felt it necessary, it could then have invoked its prerogative and requested the documentation as provided in the Leave of Absence rule.

The question of excessive absenteeism is not a new one in this industry. In fact, it is one which has been ruled upon on numerous occasions by the various tribunals established by the Railway Labor Act. It has been consistently held that failure to be available for service, including authorized absences due to sickness resulting in excessive absenteeism is sufficient cause for dismissal.

The Board must here note, however, that this claimant was first employed on September 7, 1977 and prior to the July 15, 1998 Level 1 discipline, his record reveals just three prior discipline entries during his twenty years of service, only one of which involved a serious charge of running through a main line switch and Red Stop signal. In addition, the Board notes that claimant, in his closing remarks at the October 8, 1998 investigation, stated:

"I would like to state for the record that due to the back injury that I sustained in a car accident on July 15th 1997, I have been unable to return to work in a consistent manner."

This Board certainly is in no position to judge whether or not claimant's injury was sufficient to render him incapable of performing service for the Carrier. Inasmuch as his prior 20 years of service did not involve cases of absenteeism, it may well be assumed that something occurred in 1997 which has resulted in the alleged unavailability since that time.

The Board believes that claimant should be given the opportunity to offer proof of his inability to return to work "in a consistent manner," therefore, it is our decision to reduce the dismissal here imposed to a suspension from service. Claimant shall now be offered the opportunity to return to active service with seniority and other rights unimpaired. He will, of course, be required to pass the necessary return to work examinations required by the Carrier. He is not entitled to payment for time lost.

AWARD

Claim disposed of as set forth in the above opinion. Carrier is instructed to comply with this award within thirty days of the date hereof.

F. T. Lynch, Neutral Chairman

J. E. Nash, Carrier Member

A. Martin, Employee member