Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7201
SECOND DIVISION Docket No.
6958
2-spr-MA-'77
The Second Division consisted of the regular members and in
addition Referee Martin I. Rose when award was rendered.
( International.ASsociation of Machinists
( and Aerospace Workers
Parties to Dispute:
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Machinist G. A. Sabella (herein-
after referred to as Claimant) was unjustly dismissed from the
Carrier's service on August
19,.1974.
That, accordingly, the Carrier be ordered to restore Claimant to
service with seniority and service rights unimpaired, including
insurance benefits, and with compensation for all wage loss From
date of dismissal to date of restoration to service.
F ndin s:
The Second Division of the Adjustment Board,.uppn the whole record a,4d
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,
19A·
This Division of the
Adjustment Board
has juripdictiop over the dispute
involved herein.
Parties to said dispute waived right of e,ppearance at hearing thereon.
Claimant was employed by the Carrier as a machinist and last worked his
regular shift on March 31, 1971-. Carrier issued a letter dated July
24,
1974, which stated that Claimant was thereby notified to appear for formal
hearing on August
8,
1974 in connection with his absence ffom work since
March 31, 1974, "allegedly without proper authority", in violation of Rule
810
of the General Rules and Regulations and Rule
25(a)
of the Mechanical
Department Agreement.
At the commencement of the hearing on August
8,
1974, the Vice Local
Chairman made the following ;request for postponement of the hearing:
Fo rm 1 Award No, 7201
Page 2 Docket No.
6958
2-SPr-MA-'77
"I do not think this hearing should. be held today because
Local Chairman Ray Hughes requested a postponement until
Mr. Sabella could appear. This request was denied by
Local Management. The information that Mr. Hughes received
is that Mr. Sabella is in the hospital and unable to attend."
The Hearing Office, in effect, denied this request. Without comment on
the application for postponement, he continued and completed the hearing in the
absence of the Claimant. On Augast
19,
1974, Claimant was dismissed for
violation of the rules mentioned above.
Petitioner contends that Carrier's refusal to postpone the hearing,was
unjustified and deprived Claimant of an opportunity to appear and present a
defense against the charges in violation of the fair trial requirements of
Rule
39
of the controlling agreement. Petitioner asserts Claimant notified
his'foreman of his absence as early as possible in compliance with Rule 25
of the agreement, and that Carrier's dismissal action is not supported by the
record.
Carrier maintains that the denial of .postponement of the hearing was
reasonable and consistent with the fair trial requirements of Rule
39
in that
Claimant was absent from work for a period in excess of four months prior to
the hearing, could not be located, and "was given opportunity to surface and
present a defense for his absence but did not elect to do so". Carrier asserts
that there is substantial evidence in the trial record that Claimant's absence
from work violated Rule 810.
The record does not support the Carrier's position with respect to the
denial of tie application for postponement of the hearing. The notice of
hearing letter was sent by certif'ied mail fifteen calendar days prior to the
hearing date. Nevertheless, there is no evidence that this notice letter
was delivered at the address to which it was sent by the Carrier, or that
Claimant received it, or had knowledge of the hearing date. In the absence
of such prpof, it cannot reasonably be concluded that the Claimant "did not
elect" to attend the hearing and present his defense, as asserted by Carrier.
The record discloses a course of events relating to Claimant's absence
from worX which indicated that the requirements for a fair trial mandated
postponement of the hearing for a reasonable period. Early in April or
May,
1974
(the foreman first mentioned the earlier date and then changed to
the later date), Claimant notified his foreman that he was going to be admitted
to a psychiatric hospital. The trial record also shows that prior to the
hearing date, Carrier knew that Claimant was in such hospital and, at an
unspecified time, had some information from an undisclosed source that he
had been released from the hospital but had no report as to his "whereabouts".
Under these circumstances, and considering that Carrier desired to bring to
trial charges against Claimant based on his continued absence from work and
thereby place his job in jeopardy, Claimant's representatives were, upon
their request for a postponement, at least entitled to a reasonable opportunity
Award No. 7201
Docket No.
6958
2-SPT-MA-'77
on his behalf to consult with him either at a hospital or to locate him
elsewhere, if possible, and advise him of the ineluctable necessity for
explanation of his failure to report for work at a rescheduled hearing.
Furthermore, the record shows that August
8, 1974
was the first hearing
date fixed by the Carrier for Claimant "to cover" his absence from work.
There is no evidence, or even a suggestion, that postponement of that initial.
hearing
date
for a reasonable period would have prejudiced or inconvenienced
the Carrier or interfered with the efficiency and safety of its operations.
We are constrained to find that the action of t~e Carrier in refusing
to grant postponement of the hearing for a reasonable period was arbitra
and deprived the Claimant of a fair hearing to which he was entitled uladek
Rule 39 of the controlling agreement. For these reasons, the claim tnu~t be
pustained pursuant to that rule
except as to "insurance benefits" referred
to in paragraph "2" of the claim
w4ieh
are denied. In accordance with the
applicable rule, outside earnings shall be deducted. in the computation of
wage loss.
A W A R D
Claim sustained in accordance with, and ~o the extent
iadicated, in
the foregoing
Findings.
Attest: Executive Secretary
National Railroad Adjustment Board
NATION RATLROAD ADJUSTMENT BOARD
By Order of Second
Division
By _._
osemarie Brasch - Administratiuq Assistant
Dated at Chicago, Illinois, this 4th day of January,
1977.