C:\AWARDS\OUT\2-07233.htm

Form 1 NATIONAL RAILROAD ADJUSTI4ENT BOARD Award No. 7233
SECOND DIVISION Docket No. 7092
- 2-SPr-CM-' 77

The Second Division consisted of the regular members and in addition- Referee C. Robert Roadley when award was rendered.

( System Federation No.

162,

Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

(

( Southern Pacific Transportation Company

Dispute: Claim of Employes:

1. That the Southern Pacific Transportation Company unjustly dismissed. Carman R. J. Garza from service effective December

30, 1974.

That accordingly, the Southern Pacific Transportation Company be ordered to restore Carman Garza to service with seniority rights, vacation, Health & Welfare Benefits and all other benefits unimpaired, and compensate him for all time lost since December

30, 1974,

until. restored to service.

Findings: The Second Division of the Adjustment Eoard, upon the whole record and all the evidence, finds that: The carrier ox carriers and the employe or employes invclved 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.

This claim is the result of Claimant having been charged with and found guilty of excessive absenteeism. The investigation of this charge was held on December 17, 1974; Claimant was adjudged by the Carrier to be guilty of the charge and -was dismissed from the service of the company by letter .dated December 30, 1974, which reads in pertinent part as follows:

"You are dismissed for being excessively absent from your employment as a carman at Englewood Yard

days in March,

days in April,

days in May,

days in June,

days in July, L. days in August, 10 days in- September,

days in 0 ctober arid

days in November,

1974,

which constitutes a violation of Rule

of the Rules for Employes of Mechanical Department."

The pertinent part of Rule

states as follows:

Form 1 Award Tao. 72:33
Page 2 Docket No. 7092
2-S='-CM-' 77

"Rule

ATM7IOPT OF DUTIES - Employes shall report for duty at the prescribed time and place and devote themselves exclusively to their duties during prescribed hours and shall. not er_gage in other business without permission of the proper office. Employees shall not lay off without permission except in emergency; in such cases, the foreman mast be notified as

promptly as practicable . "

Petitioner has based his appeal on the following:

1. Claimant was genuinely ill, under doctor's care, thus his absence from work was for valid reason;

Claimant is considered to be a very good worker by his supervisor;

That although he does have a language barrier, he made every effort to comply vrith the provisions of Rule

(quoted above) and Rule

19,

which reads in pertinent part as follows:

"Rule 19 - Absence Account Sickness. In case an employee is unavoidably kept from work, he will not be discriminated against. An employee detained from, work on account of sickness or for any

good cause shall notify 1-.,.is foreman as early as possible . "

The record of this case shows that the claimant's ability as a worker on the job was not questioned by the carrier nor was he charged, and subsequently dismissed, for violation of Rule 19. It is noted that Rule 19 treats with the limited matter of being detained from work account of sickness whereas Rule 3 treats with the broader matter of laying off without permission except in emergency, irrespective of the reason for such absence. The transcript of the investigation shows that claimant was previously dismissed for absenteeism and then reinstated, on December 27, 1973, after a period of approximately three months. The transcript also shows that claimant received several warnings concerning his absenteeism and was counseled by carrier officials subsequent to his reinstatement. The transcript shows that the claimant has a history of respiratory problems stemming from a lung operation that took place in 1955. Petitioner averred that these problems were the root of claimant's illnesses and introduced two documents at the investigation in support of that assertion; the two documents were one each from the two doctors who had treated the claimant over the years, Dr. Delgado and Dr. Antonetti. The significant portions of these two documents (letters) is as follows: Award No. 7233
Form 1 Docket No. 7092
Page 3 2-SY-T-CM-'77

Letter from Dr. Delgado, dated February

25, 1975:

"This letter is to inform you that Mr. Raymond J. Gaza has

been a patient of mine for the last ten years . The

exact days and dates on which he was in my office cannot be

furnished because unfortunately, at the present time, his

record has been misplaced; however, I can assure that the

dates he missed work were because of illness."

The reference to "exact dates" was to visits to the doctor's office during the preceeding year.

Letter from Dr. Antonetti, dated December

27, 1974:

"Mr. Raymond J. Garza was first seen by me in Jefferson Davis Hospital for a pulmonary lesion, and several other medical problems. These records may b e obtained upon request. (These records were not produced by claimant).

"He has only been in my office once for a respiratory viral

infection. I request for him to have a pulmonary functign test

which were normal. His x-ray showed scarring from previous

' surgery.

"This is all the information I have available . "

At best, these two letters substantiate that claimant has a history of respiratory problems, but this fact was not at issue. What was at issue was whether on the dates stipulated in the charge the claimant's absences were due to illness and, if such were the case, did he have corroboration from his doctor covering the dates in question. While it is true that the burden of proof in discipline cases rests with the carrier the responsibility for producing probative evidence to support assertions made in behalf of claimant rests with the claimant and/or his representative. The record does not contain such evidence in support of claimant's position. Additionally, the Carrier determined on the basis of the investigation that the claimant did not have a language barrier to the degree asserted by Petitioner and we find nothing in the record to suggest this determination was unreasonable, arbitrary or discriminatory. (see Third Division Award 19808, 15574, First Division Award 16411 and Second Division Award 2293)

Based upon a careful review of the transcript of the investi gation it is our determination that there was substantial evidence to reasonably support the decision of the Carrier. Under such circumstances we may not substitute our judgement for that of the Carrier. (See Second Division Awards 2996 2993 and a host of other Awards from this Board)

A W A R D

Claim Denied. Form 1 Page Attest: Executive Secretary National Railroad Adjustment Board Award No. 7233 Docket No. 7092 2-SPT-CM-' 77 NATIONAL RAILROAD ADJUSTMENl BOARD By Order of Second Division RC semarie Brasch - Administrative Assistant Dated at Chicago, Illinois, this 4th day of March, 1977.