C:\AWARDS\OUT\2-07165.htm

t'ox~n .z ,LVA:L':LONAZ, 'RAILROAD ADJUSTMENT BOARD Award No. 7165
SECOND DIVISION Docket No. 7005-I 2-PCT-I-'76

The second Division consisted of the regular members and in addition. Referee Gene T . _-iitt e° when award was rendered.

( Frank ~'e;..l jVgrizv Parties to Die:

( Penn Tre-nsportat-ion Company

Pis~.v,e: C1aino. of Fznnloyt:se _..~...~.o.~r~..-..o.__._...___..-.~_.._.-__ +.~...-

Emp:Loyee claims restcx°at3_on to seniority and compensation eonsistirxg

of the difference between his rail-road pay and his actual earnings fox

the period. from the date of hl -s dismissal until the present time, in

accordance with ~~ec15:i_on 7-A--1(d) of the contract. Employee claimq that

he was improperly dismissed on the charge of being off duly without

permission

from February 8 to February 15, 1972."

findings:

The Second Division of the Adjustment Board, upon the whole record and all the e"ridence, finds that: The carrier or-carriers and the employe ox employes involved in this dispute axe respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193+.

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

Parties to said dispute waived right

appearance at hearing thereon,

On February 15, 1972, EAtice of Trial was issued to Claimant fox "Being Off Duty Without Permission From February 8 to February 15, 1972". Trial was held on March 22, 1972. Claimant was notified on May 15, 1972, that he was dismissed from service with Carrier. He appealed this discipline by letter dated May 18, 1972. Appeal, based on leniency, was heard by the Superintendent of Labor Relations and Personnel on June 2, 1972 and denied by letter dated June 7, 1972. A joint submission was requested by the Employees on June 26, 1972. A Proposed Joint Statement of Agreed-Upon Facts was forwarded by Carrier to the Local Chairman by letter dated June 30, 1972. On February 21, 1975, Carrier received the Employees' position fox submission of this dispute and an agreement to the proposed facts. The appeal was discussed at a meeting held on April 9, 1975 between the parties' representatives. By letter dated April 30, 1975 to the General Chairman, Carrier reduced Claimant's dismissal to a suspension., -via.th all time held out of service to apply his discipline. Carrier transmitted a letter to Claimant on May 12, 1975 advising that he (Claimant) should report to the Medical Department on May 16, 1975 fox a return to duty medical. examination. By letter dated July 3, 1975 Claimant vas advised to report fox medical examination on July 14, 1975, together with the advice that his failure to report ox show cause why he could not report would result in his being furloughed and subject to recall. form 1 Award No. 7165 Pa.gE 2 Docket No. 7005-I 2-PCT-I-'76 The record discloses 4-hat Claimant` s exhibits number one and two were not handled on the pr(aya,·rt,·,: arid tk:ev~.~'cve can, not be considered in the appeal to this Board. Al.. so, v,uex'e 's..~n r.ca~i_:t~._.~ -the record to indicate that Claimant's wife was not all-owed. t~7 t;ai,if'~k; at, t-.-_, investigation hearing. It must be concluded because of' v~>>r: c~i..7.ra,°~y c:~ v)f ItI-Tae, -to perfect this appeal and also because of the fac~t ~:_~.~.~rrt;.r7~: rz~:v~.;~:~:-~ "eo rcapoxt to work upon invitation of Carrier, that G:1a~-irr~;~·:v-, `~::.~ . ,. :xv:z~:~_t: J'.:It;erest in his job. He was charged with "being u'~f .> ~' - ., ~ ~>~:,:Py ~.~ , _ _f:.°(.Jm February 8 to February 15, 197_

_~ , .~°''r-.

The txanscxipi~ r:~_:.~...°~,; >~a:5~:as _a,~. . _..a-i .:naut did not comply with Rule 8-I-1, which is:

_

An em°r??oye clw~t~.~.w~:~

.`":~t°.z~

;~;o,~k for any cause must notify his

Foreman as soar; a:,s possibi.s:..

;:

Claimant never notified hi;3 !v'oremarz at arty time that he was going to be absent from February 8 to .o'~f~..~<~,v°y 1_5? ~;~`~. Members of his shop attemyt,pd to contact Claimant throughout the period, u~.rw~o7wed, without success. It appears to this Beard that apt unreasonable length of time expired in perfecting the appeal from the date Carrier forwarded the Proposed Joint Statement of Agreed-Upon Facts ran June 30, 1972 and the date Carrier was advised that Claimant agreed. on t'kle Proposed Joint Statement of Fact, February 21, 1975, almost three years latex. It appears that there was sufficient evidence to find tree Ca.airmant guilty of being off duty without permission. It is wellL established that Carrier may giant leniency but that this Board has no power to gx"art .!.~n:i ency. The record also indicates that Claimant was not deligent in peri~eting his appeal ox progressing the same promptly. The very purpose: of the Railway Labor Act was to provide fox prompt disposition of disputes betweesi carriers and their employee aid for other purposes. . When the rights conferred by this Act axe delayed fox an unreasonable time; preventing prompt disposition of disputes, then the purpose of the Act is destroyed.' Fox the above reasons, this Claim will be dismissed. Claim Dismissed. NATIONAL RAILROAD ADJUSTMENT BOAFD . By Order of Second Division Attest: Executive Secretary National Railroad. Adjustment Board By ~OG /l~.~CJ Rosemarie Branch - Administrative "Assistant Dated at Chicago, Illinois, this 16th day of November, 1976.