AWARD NO. 7
CASE NO. 7
PUBLIC LAW BOARD NO. 5142
PARTIES TO DISPUTE: UNITED TRANSPORTATION UNION
TO
UNION PACIFIC RAILROAD
(FORMER MISSOURI PACIFIC UPPER LINES)
STATEMENT OF CLAIM
Claim of Switchman J. W. Dean for all time lost account being improperly disciplined. Claim includes payment for all wage equivalents to which entitled, including monetary equivalent of lost productivity shares, with all medical, surgical, life and dental benefits, and for monetary loss for such coverage while improperly disciplined. All notations of said discipline are to be removed from the Claimant’s record.
Organization File: DF-221-972
Carrier File: 9003916
OPINION OF BOARD
As a result of a notice of investigation dated June 25, 1990, investigation ultimately held on July 18, 1990 and by notice dated July 25, 1990, Claimant, a Switchman with 12 years seniority, was dismissed from service for failure to comply with instructions to reduce excessive absenteeism and protect his assignment on a full time basis.
The record reveals that Claimant has had an absenteeism problem for some time. By letter of June 19, 1989, the Carrier, by Superintendent S. L. Hefley, informed Claimant as follows: It has been brought to my attention that in the past ten weeks beginning April 1, 1989, you have been working an average of four days or less per week and you are not alone in that respect. There are a total of twelve extra switchmen averaging working four days or less per week. The Union Pacific Railroad cannot afford part time employees waiting on the Railroad. Therefore, I am instructing you to properly protect your assignment as a switchman on the Extra Board at North Little Rock, Arkansas. If you have any questions concerning these instructions apply them to me now for explanation.
By letter of September 20, 1989, Hefley again wrote Claimant about his absenteeism: This letter is in reference to your poor performance of protecting your job with the Union Pacific Railroad. From July 8, 1980 thru September 22, 1989, you have been unavailable a total of 30 days or 44% of the time. This is not acceptable to the Union Pacific Railroad. We will no longer tolerate any employees working part time when they are full time employees. This letter will serve as instruction to you that I will no longer tolerate anyone abusing the system only protecting their job part time. You must protect your assignment five days per week. I will be personally tracking your performance for the next 30 days and your failure to comply with my instructions will leave me with no alternative but to schedule a formal investigation and place responsibility where it lies. If you have any questions or comments concerning this letter, please feel free to contact me and I will set up appointment to discuss any questions or comments you may have.
The record further reveals that Hefley again met with Claimant concerning his absence record wherein Claimant was again given specific instructions concerning the need to improve his absence record. Claimant testified that he had a conference in March or April 1990 with Superintendent Hefley (Tr. 4-5):
Q. So Mr. Hefley, the Superintendent, conferenced you about your excessive absenteeism and that was back in March of this year?
A. April. March, somewhere there. I don’t know when exactly.
Q. What did he tell you at that time?
A. Told me to stay marked up more at least 80% of the time.
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, I haven’t but I have excuses. I had those circumstances beyond my control and that was the reason why I had to be off.
Even though Hefley gave specific instructions in March 1990 to Claimant to mark up and be available for work 80% of the time, during the period April 29, 1990 through June 28, 1990, Claimant was unavailable for work 27.47% of the time.
The record also reveals that Claimant has been disciplined in the past for absence-related conduct. On January 9, 1989 Claimant agreed to take a 15-day deferred suspension for failing to be available when called. As shown by letter of January 27, 1989, Claimant was assessed a 30-day actual suspension for failing to comply with instructions issued to him on July 15, 1988 to make himself available to work as a Switchman. That letter further indicated that because Claimant’s prior 15-day deferred suspension had not cleared, Claimant was required to serve a 45-day actual suspension.
[Text continues unchanged through Award]
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
