;'osrn 1 h`A7`IOKnL RAiLRt%%?i AD.1LiSTRi;!'.t' DWIRD A,Taa·d No. 7067
 SECOND Li:LVISrr;.N' Docket No. 6841
 :'0"q a 6




_Fart ivyyto pisautP:




Dis~uee_: (J_y,im of Iampl_soyes:



rind a, l? c r g

'~1~ho Second Division of t=.1^ Adjustment Board, upon tbe whole record and all the evidewce) finds that:

 The carrier or carriers and the CiIy1C?y(': (3a_' employes involved 1_i. this d3,.Sp"..te are ?'f'.:·fai?CtLSTE'ly carrier and cliip.'L.Oye within the npaning of the Railway Labor Act as approved June 21, 1934.

 This Division o£ the Adjt=_stro.a`t: Board 1-.as jurisdiction over the Wsput:c. involved herein.


Claiz:?ant; was employed by Carrier as Wohialist: at Sacramento General Shops, with regularly assigned houa.v. 7:U0 A.M. to 4k:30 P.M. Monday fihro.aos Fa.-iday. By letter dated `gay 1.4, 1974 Claimant v,a:; dismissed froan the service of Carrie4- as follows:










Dorm 1 Award ho. ?66%
 Page 2 Docket No. 6341
 _` P._,hxA_ i
 CokltinUVd failure by employes
 to protect their employment shall be
 sufficient cause for dismissal.'

Thereafter appeal pracejux°es were exhausted on fine property and the furrier declined to reinstate Clairctnt- with back pay and other benefits.

 The record is clear that Claimant teas either tardy or absent on each
 of the ten (10) workdays in March and April 1974, It is ullcontrave:ted that
 Clairn:znt vas late five (5) of UP days cited and that he did not work at a3.1
 on the other five nays. On four Of the tardy CiiyS in question Claimant callod
 in t0 his shOp an(] spoke either to other employees or his li)I'efn:?'I?. Cli:i.mece?'s?.:
 cannot recall if he gave a reason Ft's his tardiness but testified that if he
 had h e would Live mentioned ii 1S %Cult y t2."Cl'.1(7lF:Stt on G',-: of those dites and
 h15 Wa's false labor an another. The iolLi?':i.`n and other enTloyees recall

 that Claimant st, tcd i.i; words oz° substance be would be I4tt,:e on alas:' dates bP_C'auSE.' Of JL''P.5_'S.lE.'f?p12i'. On one date W7.ITSr'..(Ilt did not call in i)I'.t 1."epnrtCJ
 at 8:3d A.l,t. Tiie record :`.la~ -,'.1;' lie Sl.Utod his reason t ar ~i

1t i.s also uncontroverted t1-:at Clai.nr-;rit- d ii: not report for work at 81.1 an five (f) of tile days in question. On ore of these dates, April 1j, 1974, Claimant had hi's father, who Iaor°I:od for the ;-.-iale fare?rcrl. inform the latter 'it 6: 5C IA.M. that his on would not be in because he l;,f? ~t.~.,,~n Gv:a.icr~ ,:cost of the night while his wife IIVe birth. On t,be fall:c° other ahserlce dates iNfarcl) 13, 14, 15 and 18, 137 4 Clai?;~ant cG::1 I.arl in ~·a.ctl ;t~vrliirt~,s c;it:?:<x' rtli_nutes, 1)o- r0 , or after his starting time Of 7:0i) ti.itf., and lCli: word he would be absent that day because he had "personal business to take care of". The record shows that the personal business was his trial in i3 C:i iCfti_I?al proceeding in which Claimant was indicted) convicted an pleas of guilty anti subsequently incarcerated in a California State Correctional Facility.

 Rule 810 of Carriers General Rules and Regulations is not unreasonable on its face and is not, as the Organization suggests, inherently in conflict with Rule 25 of the controlling Agreement as examination of the cited provisions demonstrates:

          "Rule 25. (a) An employe detained from work account sickness or for other cause) shall notify his foreman as early as possible. tvllul. returning to work he shall given the i=ilre(~:n in cl-,arge sufficient notice (at least 13 hours) so that proper arrangements may be made. (b) if an e(?1,p3.oye is unavoidably kept from work, he will not be unjustly disrri~nin::xt:E:3 zi~czi.n.<.t.

                                  rf


                                .,

Focal 1 Award No. 7067
 Page 3 Docket No. 6841
 2-SP-MA-'76
 "Rule 810
 Employer must report f_-or duty at: the prescribed
 time and place. ® . . Continued failure by employees
 protect their employment shall be sufficient cause
 for dismissal."

 It is clear that rules of reason and of contract construction require that
 these provisions be read and applied together in determining the validity of the
 instant claim. Such reading convinces us tha=t the employee has the obligation
 of regular and timely work attf'I:r.:(7r1CE and '(:h,`.' burden of providing whenever
 possible advance notice of an anticipatrd tardiness or absence. But as we
 read the rules bays notice is not aloha sufficient. The employee also has
 the burden of persuasion tint the reason for absence or tardiness was unavoidable
 E'.m.g_ :37_Cl·:irC SS or other such cause. IV the employee gives a0ance notice and
 demonstrates that he was unavoidably kept 1rU:~1 lie rny not be disciplined
 under BaIlE.' 25. C~C:'2~?C-t. ·' f-%.r_)' y l i h(_' to give adequate notice and does not
 show that failure was itt1IVOJ.C:xli)lf?j or, W he gives notice but fails to show,
 t'hat the rca ion for his absence or tardiness wa;1 unavoidable, then he 0 subject tO discipline. The ryantil"y nf! discipline C1C:i.r.lj'(`0121d k`urlgE'_ up t0 dismissal depending upon theC1rC'2?'.ll:~ :.e'.It,C.c'.:: ~ 171C lli,J iIi;; the T:I i :'if-tb and quantity aF 1'aillarcys to report for dray and f.klc: 1-,ast record of-' the employee.

 Applying time=E' standards t() tl;o instant ciR--Iinl wo find that: Ol_aimnnt
 was s s 5s because ~x overslept. n ~ 7 gave
 ~, tardy oa at: least four c~cc..s..iorl5~t..sC..iorl5 hr overslept. Apparently hfp ~,._ avE.
 notice each time hut oversleeping is not an unavoidable reason for tardiness
 especially where cl pattern is shown as harcin. On one of the days of absence
 Claimant did not give advance notice but the record shows that his wife entered
 labor yin(; he took her '~,:r) the hospital where C?!' uv&rwent Caesarean section Gal:
 day lox- delivery of t1leir child. In our judgrt,m:f s l.(.h a renson fal-Is within
 the ambit of "sickness or other cause" such as to constitute unavoidability
 under Rule 25 (b). But, file rar,vainily Our days of absence were because of
 participation in criminal trials in which he seas the defendant. The Awards
 of several divisions of this Board ax°e unanimous that such an excuse is not
 justification for absence from work. _;.'o~? Wards 1`.'.993, 13816 19568 (Third)
 and 4089 (Second). Those Awards Stand essentially for the proposition that
 detention and incarceration f=or criminal activity is not unavoidable but is
 rattler the consequence of arse's actions- We are convinced that: Court appearances
 in connection 4.'i.th such Criminal CI1C.ii"gCs, S.'hilC' compulsory on pain ofi contempt
 of court and arrest, similarly arc not "unavoidable" a:, that term is used in
 Rule 25 (b ) . It= is clear from al-1 of the f'ar a a .r: g; that Cla.iinant's tardiness
 on four occasions and his absence on four occasions were not unavoidable. There
 can be no doubt that t?lesc absences ally tardiness in a four-week period were
 excessive and subject to 6iscipliny. Nor can we conclude in all of the circum-
 stances and upon consideration Clai.:riallt`s gist discipline record for excessive
 tardiness, including dismissal and r('i.I1Sl.cttCITIcnt 0I! a leniency basis, that
 dismissal in this I?til`tlClalc.'lr case was LIr3T·ceisC)IS<.rtf?i.'y arbitrory or capricious.
 The claim is j<-'·I1ie(i.
 Form 1 Award No. 1067
 Page 4 Docket No. 6941
 -SF-911-` 76
                        ~A W A R n


      Claim denied.


                            NATIONAL 1nILROt1F ADJUSTMENT BMRD

                            BY Orde'r of Second Division


Attest: l;xcc;sti_vc Secretary
 National Railroad udjusLr::~nt Bird

    ~,/~


Y r ' . `_~._.___ .~__ _ :_._.~____ _.__.__
    Roseixzr.iF.: BrUsc?t,- Administi-ative Assistant


Dated at "hicaga, Illinois, this lLt:h clay of Tune, 176.