Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7242
SECOND DIVISION Docket No.
6983
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 dismissed Machinist
Glenn D
. Hidey from its service on October
17, 1973.
2. That accordingly the Norfolk and Western Railway Company be
ordered to restore :Machinist
Glenn D
. Hidey to service with all
seniority and all other rights and benefits unimpaired and to
compensate him for all lost compensation since date of discharge.
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.
Claimant was employed as a machinist at Carrier's Brewster, Ohio,_
shops. On October 12,
1973,
Carrier wrote him that he had been absent from
work without permission since October
6, 1973
and that he should report to
the General Foreman's office within five days or his name would be removed
from the seniority roster and his record closed. Claimant did not report; and
on October 17,
1973
he was sent a letter that he had been dropped from the
seniority roster and the payroll.
On November
30, 1973,
the Local Chairman recraested a hearing in
connection with such action cf the Carrier. Notice of hearing was issued
on the charge that Claimant was absent from his regular assignment without
permission on October
6-9-10-11-12-13-16
and
17, 1973
"in v_olation of
Pule 10 of the current agreement." Carrier also stated in the notice of
hearing that the request for a hearing was untimely under Rule 13 of the
agreement and that the scheduling of a hearing was without -prejudice to, or
waiver of, that objection.
Form 1 Award No. 7242
Page 2 Docket No. 6983
2-N&W-MA-'77
The hearing was held on December 20, 1973. By letter dated January
22,
1974,
Carrier
advised that;
"Claimant's dismissal from the service" of
Carrier "is upheld and in effect".
Carrier presses its untimeliness objection by reference to the 10 day
time limit stated in Rule 13(I)). Petitioner responds by citation of the
60
day time limit provided in Article V of the August 21,
1954
National Agreement.
Rule 10(A), relied on by the Carrier with respect to the merits of the
dispute, reads as follows:
"When an employee wishes to be absent from duty he must
obtain permission from his foreman. If detained from
work on account of Lllness or for any other good cause
he shall notify his foreman as promptly as possible. If
he fails to do so, it will-be considered sufficient cause
to drop his name from the payrolls and seniority rosters.
An employee off duty must notify his foreman when he expects
to return to work in sufficient time to permit release of
relief man working :Ln his place. Failure to so notify the
foreman shall void claim for time due because of reporting
and not being used on day of reporting."
Petitioner contends that Claimant did not violate this rule in that
his absence from duty was not due to his "wishes" but rather the result of
his confinement to jail in connection with a traffic violation, and that
Claimant's wife gave Carrier notice of his absence in accordance with the
rule.
Carrier contends that its actions are fully supported by the record.
The confinement of Claimant to
jail
did not automatically relieve him
from compliance with his obligations as an employe of the Carrier including
t he requirements of Rule 10(A); and presumably, at least, he must bear the
responsibility for the conduct which resulted in Poi s incarceration. The
critical question is whether ':,he record discloses substantial evidence to
support Carrier's finding that; Claimant violated Rule 10(A).
We are constrained to answer that question in the affirmative. There
is no evidence that Claimant obtained permission for his absence from work.
The testimony of Claimant's w:Lfe concerning her telephone conversation with
a Carrier official does not warrant a contrary conclusion. Her testimony
plainly indicates that she did not request or receive permission for the
Claimant to be absent from dur:y. In addition, this Division has held that
incarceration does not constitute unavoidable absence from work for "other
good cause". (Second Division Awards
6606, 4669).
Thus, we
cannot regard
the second sentence of Rule 10(A) relating to absence from work on account
of illness or "for any other good cause" as applicable in the instant case.
Form 1
Page
3
Award No. 7242
Docket No.
6983
2-N&W-MA-'77
Nor can we say that Carrier's recourse to the termination clause of
Rule 10(A) was arbitrary. The record shows that Claimant has failed to
respond to Carrier's repeated past efforts to obtain his compliance with
the rule and that the last of such violations occurred only about six
months prior to the instant one.
We find no valid basis -.'or disturbing Carrier's determinations, and
the claim must be denied.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Rosemarie Brasch - Administrative Assistant
t
Dated at Chicago, Illinois, this 11th day of March,
1977.