Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7223
SECOND DIVISION Docket No.
6979
2-N&W-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:
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the
Controlling Agreement when it improperly assessed a thirty (30)
days actual suspension against Machinist J. A. Allen.
2. That accordingly the Norfolk and Western Railway Company be
ordered to make Machinist
J'.
A. Allen whole in all ways for any
losses suffered including, but not restricted to, lost wages,
seniority rights, insurance and hospitalization and other fringe
benefits.
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 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.
The claim questions the validity of the 30-day suspension assessed
against the Claimant after investigation of charges of excessive absenteeism
and of falsification of reason for absence on a specified date.
We have examined the record with care and find no valid basis for
reversal of Carrier's actions, procedurally or on the evidence relating to
the charges and the measure of discipline.
Petitioner's contention that Carrier violated the "precise charge"
requirement of Rule 33 of the controlling agreement by reason of the failure
to specify in the charges the days on which Claimant was absent is untenable.
The charge specified the number.of days Claimant was absent in each month
during the period covering the alleged excessive absenteeism. Such
specification sufficiently indicated the precise nature of the absenteeism
charge, and there was no need to state the days of absence in addition.
(See Second Division Award
6706).
Form 1 Award No.
7223
Page
2
Docket No.
6979
2-N&W-MA-'77
The record shows that the Claimant was represented at the investigation
by the Local Chairman and two Committeemen, and that each of them participated
in the proceedings. Contrary to the assertions of Petitioner, the attendance
of General Foreman Bon as a witness was not requested at the investigation.
There was no showing, and there is no reason to conclude, that his testimony
was essential to the investigation.
Objection is now made on the basis that under the grievance procedure
the third appeal of the claim had to be submitted to and was decided by
Master Mechanic Scott, who testified against the Claimant at the investigation.
No such objection was raised on the property on the fourth and final appeal
to Carrier's Vice President-Labor Relations. No persuasive reason is suggested
for reviewing that objection before this Board.
The record shows that the Claimant was absent
252
days out of 72 scheduled
work days, in approximately four months, which is an absence of about
35°%
of
the time in the period mentioned. This absence record is substantial
evidence of excessive absenteeism. (See Second Division Award
6706).
Petitioner's assertions that Carrier condoned Claimant's absenteeism are not
persuasive.
With respect to the charge that the claimant falsified the reason for
his absence on the date specified, the investigation record discloses
conflicting testimony on the factual issues, which present questions of the
credibility of witnesses and the weight to be given their testimony.
Numerous awards have repeatedly held that the determination of such questions
in discipline cases is within the authority of the carrier and that, in such
cases, the carrier's findings predicated on credible and substantial evidence
must be accepted even though the credited evidence was denied and subject to
contradictory testimony. (See Fourth Division Awards
1719, 1991).
These
principles are decisive in the case.
Accordingly, and for the other reasons indicated, the claim is denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of February,
1977.