SYSTEM FEDERATION NO. 17, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Firemen & Oilers)
THE NEW YORK, NEW HAVEN AND HARTFORD
RAILROAD COMPANY
EMPLOYES' STATEMENT OF FACTS: Mr. Colburn E. Tompkins (hereinafter referred to as the claimant) was regularly employed by the New York, New Haven & Hartford Railroad (hereinafter referred to as the carrier) at its Cedar Hill Engine Terminal, New Haven, Connecticut, as an engine preparer, Thursday through Monday on the 12:00 Midnight to 8:00 A. M. shift, with Tuesday and Wednesday as rest days.
Under date of March 5, 1964, the carrier's General Foreman, W. J. Mahon, addressed the following letter to the claimant:
Claimant's prior discipline record was reviewed during the hearing and shows as follows:
Based upon the whole record we submit that carrier's action in dismissing Mr. Tompkins was not arbitrary, capricious, or unreasonable but was fully justified.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The claim as made, progressed and denied on the property was that the carrier unjustly dealt with claimant and violated Rule 17 when it removed him from service. It was denied, first by the General Foreman; and second, by the Master Mechanic, for the reason that "there was no violation of Rule 17." The third denial by the General Mechanical Superintendent went further into particulars. At each step the claim was presented and argued on the merits, but at a conference on the final appeal, which was to the Director of Labor Relations and Personnel, the further argument was made that the General Foreman had violated Rule 19-A by not stating the reasons for the original denial of the claim.
In the claim as filed here, this point is stated as Claim 1. However, it is not a part of the actual claim, which is that Rule 17 was violated by Claimant's discharge. Failure to comply with Rule 19-A is not a violation; it merely results in a forfeiture of the right to contest the merits, since "the claim or grievance shall be allowed as presented" without constituting "a precedent or waiver of the contention of the company as to similar claims or grievances."
Since the point as to Rule 19-A was not made until the discussion at the final step, and all prior arguments and all appeals were on the merits, the objection was waived and came too late. But since the claim teas that Rule 17 was violated by Claimant's discharge, the statement that "there was no violation of Rule 17," was a sufficient reason for the denial. For both reasons the claim must be considered on the merits.
Three different notices were sent Claimant of the hearing, but the first two were returned as undeliverable. However, he acknowledged the receipt of
A report introduced at the hearing showed that Claimant had been absent six days in September, thirteen days in October, six days in November, and fifteen days in December, 1963, fourteen days in January and twenty-nine days in February, 1964. It further stated that he did not report off for absences on January 2,6 and 27, 1964. The February figure is apparently erroneous but claimant did not deny his absences. He did, however, deny his failure to report off on January 26 and 27, 1964, although he could not say to whom he reported. As to that point we have an unresolved question of fact.
He gave his wife's illness and hospitalization as the reason for some of his absences, but admitted that he had been working for two other employers, whom he mentioned as "Goodwill" and "Employment Office." Whatever his reasons or excuses, it is apparent that such a record of absences, especially in view of his working for other employers, made him an undependable employee of the carrier. His seniority rights carried with them an obligation.
The employees argue that claimant could not properly be discharged because of the provisions of Rule 33, which are as follows:
But he was not discriminated against or discharged because he was unavoidably kept from work he was discharged because his absenteeism made him a completely undependable employee. "Absenteeism" is defined by Webster's New International Dictionary as follows:
Nothing in the Agreement obligates the carrier to attempt to operate its railroad with employees repeatedly unable or unwilling to work the regular and ordinarily accepted shifts, whatever reason or excuse exists for each absence, and even without the complication of work for other employers. His practice, if permissible for him, is permissible for all employees.
The last item of this record indicates that claimant's absenteeism in 1963 was not a new or isolated development, and that in discharging him for absenteeism the carrier was not guilty of unfair discrimination or arbitrary, capricious or unreasonable action.
This was virtually conceded by this statement by his representative at the hearing:
Finally, it should be noted that if claimant's discharge involved a violation of any rule, it would not be of Rule 17, which merely specifies the grievance procedure, but of Rule 19, which provides that an employee shall not be disciplined without a fair hearing, and if unjustly suspended or dismissed from service shall be reinstated, and "compensated for the wage loss, if any, resulting from said suspension or dismissal."
If the claim as made and processed on the property had been that Rule 19 had been violated, it would have been difficult, if not impossible, to determine what claimant's wage loss would have been. In the case of an employee able and willing to work the regular hours permitted and expected of him under the Agreement, his wage loss would be 40 hours' pay per week; but in view of claimant's work record, his loss would have been indeterminate.