Form 1 NATIONAL RAILROAD ADUSTMENT BOARD Award No. 7048
 SECOND DIVISION Docket No. 6917
 2-SP-MA-' 76
 The Second Division consisted of the regular members and in
 addition Referee Louis Norris when award was rendered.
 ( International Association of Machinists and
 ( Aerospace Workers - District No. 19
 Parties to Dispute:

Dispute: Claim of Employes:



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 a s approved June 21, 1934 .

 This Division of the Adjustment Board boo jurisdiction over the dispute involved herein.

At the tithe this dispute arose Claimant was employed by Carrier 4Ls a Machinist, having entered its employ on January 6, 1971. On January 30, 1974, because of alleged frequent absences due to claimed illness, Claimant was instructed to appear for complete physical examination "with Dr. Sidney Harris" on February 4, 1974. The letter of instruction also advised him that he was being taken out of service as of January 30, 1974, and stated further:

Claimant failed to appear on February 4th and further letter was sent to him instructing him to appear for physical examination by Dr. Harris on February 15th. Also, that "Failure to comply with these instructions could result in disciplinary action being taken." Instead, Claimant appeared on February 11th and was examined by a Dr. Villano, Carrier asserts that this examination was


uol; e Rl; -88AUI aq4 ;g AUOWT4904 BuIMOTTOJ aq; Aq paauapina se f4aadoxd au; uo POST= M2-ft anssl slqs ·*toM 001; ;$OT aml; pug saauasqe jolad s,;ugmlgXD o; Bul;glaz aanoqg u(Z)~ as;T o; so uol;oarqo s,.xauol;I;ad txanamoq tule;sns ;ou op aM


.xepun 0JO4490 690q; o; sg uol;OaNo s,aauol;l;ad ulg;sns am lfeCTBulpxooay


ul pam=ajgax uaaq seq f4jadoxd aqa uo aqndsTp act go Bul-Epusq aq; Bulxnp
 paslgx ;ou ia844vm Maui, JO f4ITIqTssTwPBut 90 aTdlaul:ad paqsITqe4sa aqy
tqons so spue f.sadoad aq; uo paslax ATsnolnaad ;ou ,rzaUem %ou,, a;n;l;suoO TTg
 6xdOM moxd awl; ;8oT pue saauasqe JOTad s-Fq (Z) pug sxa:nm pa;etaa pue ,pjoaax
 OTTqnd dCJongsun_ s,;ugmIVTD (T) 0; Paecsg 944 o; uolsstmqnS s;l ul a3uaxadax
 s,sal.xJg0 ; uoi;Oapqo s,xauor4l~.ad q4.IM paoe; axe aM I;as;no aq; ;d

      ·suol;ua;uo3 asaq; do qaea sa;ndslp J81-z-xey ·;soT awl; ITV sod uol;0suadmou c4IM pa;e;sulaa aq pTnoqs aq tXTBulpaoaav E;eq; pue `· passlmslp 4CT;sninn sgm aq ;gqp

      !aalnzas do ;no pTaq ATaadoade:,uslo ;gq; sPuaZUOO ZOUOl;l;ad


·K6T `9Z TTJdV Uo aolnXas ww;; pass1TP pug paazgqa e0 ATTna Punk SIM ;uWTVTD

      ta®4;ge:aqZ · _,d;np moaj aauasqg paslxoq;nsua psX9TZv .xnoA ulgTdxa o;_ tiG6T CZZ Tl.xdv uo uol;gBJ;saeul .xo; aeaddg o; PsOl;bu sgM ;uvulgTO t:.Tnsaa a sv


    ·sq;uom oM; ueq; axom go

    polxed a JOJ ;uamaaac8V BuIITO-x;uOa aq; JO OT8 apg go uOT4VTOTA UT ,ATzoiq:pv

    jadoad ;noq:tIM_ ;ua"oldmozg dlasarc, q pa;uasqe 6Jalaxea Aq paRDTTe se 'g pue

    tsal.xlnbul ou apem 'aalxxeD o; ;jodax ;ou plp aq `;aid uI ·q;TT Azenzqad jade

    jaq;my Bulq;ou plp ;uMTRZO ;gq; 84BOTPUT saop parooax aq; ".xanaMOH ·a;ndsip

    ul aq o; sagadde uol;jassg ra:meT svy ·s;sa; Axo;grroqvT ulg;JaO -103 SXgp Mai

    g ul xogq ;.xodaa o; sun ;ugmlglo ;gq; poo;saapun sMM ;l ;gq; pue a;ardmoo ;ou


        9G,-VW·dS-Z

,""` G169 ·ON 4"00Q Z 021d

      8t0L ·oN P-Zamv T wrod

Form 1 Award No. 7048
 Page 3 Docket No. 6917
 2-SP-MA-'76
 "Roberts (Organization Representative) to Even
 Due to the evidence presented at this hearing, I
 hope that the presiding officer who reviews this
 case will graft leniency to Mr. Edwards being that
 he stated he will work every day and work 40 hours
 a week from now on . . . . ."

 Consequently, Claimant's prior service record on absences and time lost are properly before the Board for appropriate consideration. Similarly, and bearing further on Claimant's prior service record, the following uncontradicted assertion by Carrier is also properly before the Boards

              "Claimant has established a pattern of work habits during his three years of employment which reveal a few months of work followed by a sick leave lasting two months or more. His sack leaves during his short term of employment have totalled in excess of 15 months, well over;onerthira. of-the &vailalole working period since his employment . . . . . "


Specifically, on the merits of the charge in this dispute, we acknowledge that some question exists as to whether Claimant knew he was required to report for further. examination or for laboratory tests. Nevertheless, the record does show that Claimant failed to appear for examination on two scheduled dates, but appeared instead on a date that he chose and before another doctor. Moreover, during the period from February 11, 1974 until April 22, when he was summoned to Investigation, he did absolutely nothing and was indifferent *o and completely ignored his responsibilities as an employee.

 Clearly, in view of these facts, Claimant absented himself from his employment "without proper authority" for over two months and was in violation of Rule 810 of the Agreement. The fact is that Claimant offered no valid explanation for his conduct and conceded that he acted improperly. During the course of the Investigation he acknowledged that he received a letter instructing him "to take a physical February 4, or do not return until I do, and I failed to reply to this message". He stated further:

              " ... . Well, I just took off from work after I failed to take the physical and I did not reply to any Southern Pacific ~ersonnel as to my absence. I don't have any reason.'


In partial explanation, Claimant referred to the fact that his wife had died (without indicating when this occurred) and that he could not "adjust,to the situations at that particular time here at work". He then added:

              ". . . and I felt that I had to take off work, which I felt I should have reported to my superiors here - supervisors here at the railroad. That's all."

form 1 Award No. 7048
 Page 4 Docket No. 6917
 2-SP-M&-'76
                                                          1.410


      Again, during the Investigation, he was asked:


              "Can you tell me any reason why you didn't contact your immediate supervisor or one of your Union representatives as to your whereabouts during this extended absence?


              No sir. That's all."


We are unable to give credence to Claimant's "explanations" as justifying his conduct, not only in this instance but throughout the course of his employment, which is marked by a pattern of indifference and neglect of duty. We have held repeatedly that continuous unauthorized absences from assigned duty, absent strongly mitigating circumstances (not present in this record), are serious offenses warranting imposition of discipline and possible dismissal from service.

 See, for example, Second Division Award 6240 (Shapiro) and Third Division Awards 20767 and 20768 (Norris) among many others.

 On the record, therefore, and particularly in view of Claimant's admissions, we have no choice but to find that Carrier sustained its burden of proof that Claimant was guilty as charged. In these circumstances, as established precedent dictates, we are not authorized to disturb the action of Carrier. Carrier acted

 reasonably and fairly, Claimant was afforded a fair and impartial hearing, and none of his rights of due process were violated.

 See Awards 5183 (Harwood), 6456 (Bergman)., 6525 (FYandeci) and Third Divisions Award 20868 (Norris) among others.

 Additionally, we cannot conclude that the discipline of dismissal here imposed was unreasonable or unwarranted. Claimant's promises to comply in the future and work full time may be valid as bearing on leniency. But this is a matter within the management prerogatives of Carrier and not within the purview of this Board. This is particularly true when we consider Claimant's poor attendance record in the light of his short period of employment.

 Accordingly, on the basis of the record and controlling authoritys we are compelled to deny the claim.

                          A WA RD


      Cla im denied .


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Second Division


        Attest: Executive Secretary tional Railroad Adjustment Board


By i.
      osemarie Brasch - Administrative Assistant


      Dated at Chicago, Illinois, this 7th day of May, 1976.

                    LABOR MEMBER'S DISSENT TO AWARD

                    NO. 7048 DOCKET NO. 6917


        Award No. 7048 is not only erroneous but is so illogical as to depart from reason.

        This fact is readily portrayed such as wherein the record, also the Award, it was established fact that .the Company removed the Claimant from service. This is stated in pertinent part:


                "The letter of instruction also advised him that he was being taken out of service as of January 30, 1974, and stated further: You will not be allowed to return to duty until approval is received from our Chief Medical Surgeon, Dr. V. M. Strange."

        So it is factual that the Company removed the man from service until their Chief Medical Surgeon approved his return. The Award dictum goes on then to state in pertinent part:


                "XXX as alleged by Carrier, absented himself from employment 'without proper authority' in violation of Rule 810 of the controlling Agreement for a period of more than two months.xxx" (underscoring added)

        So the Company removed him from service, after which he could only return to service with their Chief Medical officers' approval, the record shows that this approval was never advanced, and now such a preposterous statement that the Claimant was absent from employment without proper authority.


The petitioner challenged the majority to show one single letter wherein the Company Medical officer sought information on i the physical examination this Company ordered. There was not one
 shred of evidence to support any medical findings, delays, further examinations, tests, etc. The majority in Third Division Award No. 20419 at least used more common sense and judgement on such a failing by stating.

          XW"An examination of the record of the dispute

          on the property does not reveal any medical ex-,

          planation for withholding judgment on the return

          to duty of Claimant: in fact there is no medical

          data whatever in that record. In Carrier's

          letters of June 27, 1972 and October 16, 1972,

          as well as in Carrier's submission, we find con

          tradictory assertions with respect to the various

          requests for medical information from Claimant's

          physician, but no evidence whatever relating to

          such requests. Based on Car's assertions it

          would be reasonable to expect at least a copy of

          the letters allegedly sent to the Doctor,"

          "Claim sustained xxxx."

A further mis-statement in this Award is in the previous quote stating:

          "In violation of Rule 810 of the controlling agreement."

The record shows the "controlling agreement" to be the Agreement effective April 16, 1942, as subsequently amended. Rule 810 is only a Company imposed unilateral rule that cannot be in conflict with the schedule agreement. In the instant case the Company improperly applied it in conflict with the Claimants' schedule agreement rights and the neutral supports them against all previous rulings and holdings of all boards.
 The majority properly upheld the Organizations' protest wherein the Company attempted to raise for the first time before the Board thatthe Claimant had an "unsavory pxblic record." However another error was committed in not upholding objections to

                      - 2 - (LABOR MEMBER'S DISSENT TO AWARD

                      No. 7048 DOCKET No. 6917)