r'orm 1 NATIONAL RAILROAD ADJUSTi,ENT BOARD Award No. 6606
SECOND DIVISION Docket No. 64!')9
2-SCL-CSI-' 73
The Second Division consisted of the regular members and in
addition Referee Louis Yagoda when award was rendered.
( System Federation No. 42, Railway Employes'
( Department, A. F. of L. - C. I: 0.
Parties to Dis*oute: ( (Carmen)

( Seaboatd Coast Line Railroad Company

Dispute: Claim of Employes:

1. That under the current agreement Carman Apprentice H. S. Jackson, III, was unjustly dismissed from the service of the Carrier effective June 19, 1972 at 12:30 p.m.

2. That accordingly the Carrier be ordered to reinstate this employee with seniority rights unimpaired, compensate him for all time lost, at 6% per annum interest, make him whole for all vacation rights and all health and welfare and insurance benefits, pension benefits, including Railroad .retirement and Unemployment Insurance, and al! benefits that would have accrued to him during the period of his d.ismi.ssal from service.

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 a^d 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.

Parties to said dispute waived right of appearance at hearing thereon.

Claimant was discharged from service for being absent without good cause from May 15 until May 22, 1972, for furnishing false information, and for unsatisfactory service. On four of the six dates, May 15-18, Claimant was in jail on charges that. eventually resulted in a two year probationary term for "Attempting to Elude Police". It is for this Board to determine whether his incaryeration on those dates falls under the aegis of Rule 19 of the Agreement, which reads, "In case an employee is unavoidably kept from work he will not be discriminated against. An employee detained from work on account of sickness or for any other good cause shall notify his foreman as early as possible."
1 1 Award No.
66c?6
Page 2 Docket No. 64;
2-SCL-CM-'73
Does Claimant's incarceration constitute unavoidable absence from work
on account of sickness or any other good cause? This Board has previously held.
that confinement in jail does not constitute unavoidable absence for good cause
(Award 4689, Second Division, Daly., April 28, 1965).

Organization offers Award 4160 of this Division to support their contention that Claimant's absence was for good cause. But the situations are distinguishable. There is a distinction between civil and criminal cases, and between appearances in a civil court and detention on a criminal charge.

Organization also offers Award 6470, Second Division., to support Employees' claim. In that case, t::e employee was acquitted of all criminal charges; however, in the instant case, there was no acquittal, but Claimant was placed on a two year probationary term which withheld an adjudication of guilt pending completion of the probation. Probation is not an acquittal in the eyes of the lava.

Claimant has placed himself in a position of being absent from service, but not unavoidably. He should be cognizant of and is liable for the consequences of violating the law. His conscious violation of the law does not constitute z:n una; oicnb~"_e WCsn,nce fcr gccdc c--ulln-, yio1:Ltic:cffthe la,.; arep presumed avoidable.

f~'~ Claimant admitted to furnishing false infor~r.Lation as to his reasons for
absences on May 15-18. It was a reasonable fear that an admission of arrest w-.'Lght
have jeopardized. Claimant's employment status. While his apprehensions were
understandable, his farrications are not justifiable. Carrier has a right to
expect truthful behavior from its employees in relation to work centered employee
obligations such as those involving absences.

Rule 19, while not predicated upon the granting by Carrier of permissicn for absence, does -require notification of the cause of the absence. This notification, whet. truthful enables the Carrier to provide for an adequate and stable labor force in the event.of prolonged absences. Therefore, Claimant's false information could. have worked to seriously undermine Carrier's valid rights in maintaining a stable labor force.

The introduction of Claimant's prior record for review in the investigation, in conjunction with the facts attendant to the present record, was properly considered in arriving at the discipline to be imposed. Claimant's recent record from January 3,. 1972 until May 12, 1972 shows three full days and twelve part-day absences, and his prior record shows a write-up for excessive absenteeism. The Carrier's right to have reliable employees is undisputed, and. the false information, absence without good cause, and the prior unsatisfactory aervice of Claimant are properly contributory considerations in assessing degree of penalty.
i "orm 1 Award lio. 6606
Llage 3 Docket No. 61159
2-SCL-CM-' 73

We conclude tram the record that the.discipline of dismissal in the present case is neither arbitrary, capricious, excessive, nor an abuse of managerial discretion. Claimant has beer- sho;qm to be an unreliable employee those dismis:3al was justified.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUST1,1'ENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By:

RRok~zarie .rascl A'dzi-Inistrative As3i-c-tant

Clated at Chicago, Illinois,, this 29th day of vovember, 1973.

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