Form 1 NATIONAL RAILROAD ADJ?sTrjZ1\1r BOARD Award No. 7604
SECOND DIVIST_O1d Docket No. 7515
2-sPT-FO--' 78

The Second Division consisted of the regular members and in addition Referee Abraham Weiss when a~,rard vas ,rendered.

( System Federation No. 10, Railway Employes'

( Department, A . F. of L. - C . 1. 0.

Parties to 'hispute: ( (Firemen & Oilers)

( Southern Pacific Transportation Company

Di:~putc: Claim of Employer;

1. That under the current agreement Firemen and. Oiler B. P. Dabill was unjustly suspended on April 18, 1976 and. dismissed. from the service of the Carrier on April 29, 1976 folloi.~in; an unfair aid. improper hearing.

2. That accordingly, the Carrier be ordered to:

(a) Restore the aforesaid employe to service with all service

and seniority rQhts un iripaired, com~)ems ai:e him for all

t ,. t- .~ r interest ~ added thereto"

time lost and ~~ritL p:~,~_n payment o.~' 6,,, ~daea (b) Reinstate all vacation rignts to the aforesaid emplcye.

(c) I'ay ern,alo:~ae' s gro.rp nedical in:~i: r ance contr.bution.:>, includjnL-; group medical disability, dependents hospital, surgical and :ned.ical &nd doatli benefits prc-mi.-Lmq-- for

w.~.~ time than the aforesaid employe i s held out of serv.1.cu.

Findinms

The Second Division of the Adjustment Board, upon the whole record. and all the evidence, find:; that:

The carrier or c:,rv°ier s and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Rail-,,Tay T,wbor Act as - pproved June 21, 1934.

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

Parties to said dispute waived right of appearance a t hearirv4 thereon.

During the middle of claimant's tour of duty on April 18, 1976, he was withheld from service for conduct on that; day described in tize foll0v,ing ;~ i,atement of charge:
Form 1 Award No. 7604
Page 2 Docket No. 7 515
2-SPI-FO-' 78
"You axe here?y notified to be pxeserlt at the office of the
Assistant Superintendent, One Spot Office, far;ene Yard, at
9:00 a.m. on April ?_3, 1_976, for foz:aal hearin:; in connec
tion with your alleged failure to properly perform your
assignment and for allegedly absenting yourself from your
assignment on April 18, 1976, which may involve the follo-v;ix
violations of the General Rules and Regulations of the
Southern Pacific Transportation. Company.
_Rule 801: Thai; por-;;ion reading, employees will
not be retained :in the service who are indifferent
to duty, and,
_Rale: 810: That portion reading employees rust

repoi..-foz duty a-t the prescribed time and

.place, re~main at their post oL' duty, and

devote theltlselves excJ_usively to their d7: t9_es

during their tour of duty. They must not

absent therselves frr,~al their criployment vatlaout

proper authority."

Following the hea.rini_,, clv::~:~,nt was notified that he vas d.i.scha.rged, by lettdr of Apr:11 29, 19'6.

Petitioner claims that the notice of chaYEes vas not specific. In.
many of our previous a., w : .. . .. as., , n ~~ have recognized that jl; n''r_ ~:Y' .. ._ ,w:....w.as. ;e h.w a_;n:i.zcd that t._:in 3-e_.. . o-(' _. th;:
"precise charge" requi?. :;ne·1TL.s included .,.?1 Rule 33 is adequate to advice
the employee under char,,?(' of the conduct for which he :Ls being invest-1g"=.:t.d.
The above quoted charge :::Ore than mat that reTiirenent. F'u:C"t:hermore, sine.:
nor such objection wasraised during the conduct of the hearing, cla:i.n1,Tlt,
under well recognized authority, has effectively -c-7aived any riz.,ht he might
have to raise such an issue belatedly. We JA2itae=r finrl thn3:t clainant vas
accorded a fair and STa;rtial in~Tc,,;tga t10'l 0t`!irinV 1%!'hich all o-.' his
substantive rights 11"·der the A~ree:'1ent wore preserved.

We turza now to the merits of this case. We have reviewed the record of this case thoroughly. We find sufficient evidence therein to support the charge that claimant reported for wor1~ 5 minutes late and. that t?Mere is no evidence in the record irh_cll could poc~ibly excuse claimant for ]--,,is tardiness.

With rep ard to th,.;t part of the charge caleging that. clamant :Left his

as a7 gnmeitt about 6: )-i-5 p.m. and failed 'CC? return until 7: 35 P.m., we find
no evidenco establ'ishi'n`; c_S_aanant's c0oebality. in fat, clairant' S
supervisor testified at several points d'l~,r:i_i:.;; the 11rar13:i\'~ that 1'_e _ N(_I _;ivc:Ti
cl_almant lelo.pLIOnic 1)C'viassJon l;o lc~c--ve th~c: -to ,;ecu.',-,e luaiclh
and take medication :LO:!' 11J1_s cold. The Su,penvioor aTno tesV'1fi^,^a. that 1'e j1 d
not set any specific time for claimant to return, but that he ppesumed
Form 1 Award 10. 7604
Docket No. 7515
2-SF'f -FO-' 78

he was aware that lunch periods ran only for twenty (20) ninutes. G~-ven the nature of the SupL.rvisor's open ended permission. to claimant, we cannot find claimant culpable for this offense.

Carrier also alleges that claimant 't-.,,as indifferent to and failed to

perform his assigruent propet-ly. From the evidence of the record., ve find
that clai.nant had -undoestionab:Ly ac culiplished a substantial portion of the
work he was expeced_ to perform rn the night in question. True, he had
not cleaned O'u't CG_.1..,_.'i'). shanties, J_..'shanties, ..L ~.(_ about .t "l:w't.'?.1~, but ~_ v about 8,.').,0 p.lll., Larrie.'C' rerrloved
him from service pend7_ng a hearing,-. N'e think that there is ins uffi c:!.Ln t
evidence in the record for us -to con'cl'ude claimant failed to persoz'nl his
assigran_eni: properly ~_i.ld. we also conclude that if this were the Case, it
would -be dJrectly rel,c,,ted to and C, paI:`t of the a,)sentceism charge discussed
above.

Civ..n all the fc-'egoin_, we mast consider whether the di_scha-ge pe=:::,Ity vras appropriate. Our review of the Carrier's highest officer's hundlin,~ indicates Caa ayma1t' S previous record -v*Tae5 reviewed Zit it;a General Chairman, and trat this previols record z-~::,s far frc.r) exe:pl~ry. C1;~'_~_:~ant had. previously been j:jscp_liia~d -fop thsento%lsm,
and by claimant's ONn admission durin the heari n`; his Cupeovi sons had., jv st a few uecku previous to this incident, t1arnC'0 hl'~? _:ik04;.t e'. ~ continuing bad ..,iO;,entC:e'? s?''1 i'C32Ol'v. Our previous decisions .have COnsisterbly recognized that absenteeism, if continued, can subject a,`°1 employee t0 the penalty of discharge. We hake

' ` ~

also recognized 'G:--:3;t Y.J. Ca;l'_'Ai.' should utilize progressive d.1sC2plino tU
~;~s,1>e a go~:)d faith atMTt to teach and come^t, the ovplcyee, and if ~. this °fai_1Sy discharge i._ i'uii.G" warranted. The f0Ii.0w!_i1,-AZ;ci,i'ds are e2:a:L?ples o)`: the subject of discipline for absenteeism:

Second Division 1,-~:ard 6710 (Dolnick)

QaCh e?tTloyee has an obligKion and. a duty to report o,-.t tiric and work his scheduled hours, unless he has good and suficient reason to be late, to be absent, or 'Go leave early. Those reasons ?~aist be su.ppnrted. by competent and acceptable evidence. No employee may report when he likes or choose ='i'hen -to ~rar~'t`~, No railroad can be efficiently operated for long if volc?utwr-Y absences are, condoned.

Second L1vis.Oa ~~i~?:'''a 6r+0 [t

(.~i1:.`~,y.~:LrU

This Ba.'zrd h::hs repeatedly pointed 1?.p the

v;«.W detrimental effect of abuCY1tE,'e12.!1 ll~:C,-i?. 'thG UocrCt.ti_UY1:S Cm. thL. 5~.v.i..__rG..-...>. (Award

1' L - C,,rL.- 5J)19 - J Uh.,~, ). Tree cc°hj`~is_~ on and

disYl~.pt :LUt' ; 03.1.I c.:r, A z n ..::,.?.),

,"te ,%Then c'17. `T ' .''<:.'. absents hi?:'solf :L1 -cm

Yl~.pt:LUt'; C'rt:E.~ "~t E._'.s~..'.U~,

v-or~,: 'Sv i.-C~IC%tai~ due notice to supervision is ha_.. ful not cnlf

-

tU the Call;>.f.C3yC:r but t0 other 8:Y:11)Vyi'v,:.'. C as well. me 't'',hCrc'.fi)rC=;

Cannot fault ?a"'.):~.n'C';::CI7.t 'S:,hen _._t tokcs effective man_ures '111 deter excessive absenteeism ancA tCwUl.mnev.i,

F'oa'm 1 Avrard No. 7f- 04
page ZI- Docket No. 7)lj
2-SPT-F'0-' 78
Third Division A;rard 20178 (Lazar):

" . . .The allure to protect one's c Ss Enment 7.s i,, serious

matter. As ri;ated in Alrard No. 1400 hay Referee George S.

' Ives,

rllnaut]?o :C"' ?ed abse,nr'P_s fro-:_1 d:_:''';'_ _-1._'1 ' n)._'ov-1_, are _n,('QU,I.C_. (_,^_ fense.~.__=~t,~C~.'!L~J1`li.''LI. I~'L:: ,,3 .iJ .--I_Yi airu" ! ssal j:'Y%;:1'._.__.1·`____'1cc, . , __..-.__._V~ ._..-.._.~.._..~_V. ~.-_...~...-.

Con.h:'~dccring the `C)rcCo11:4, we conclude claimant's discharge

4:'c'..5

excessive and -modify the digchnr~ a to a one (u_) ycar susp2asiOn. We also
conclude t hut C',.~ ~_c.: ° :i nprop<.r? ;y lw tht!eld cl c;:; nart 'x'oo°~ ., `;~w :Lc a pc-nd `.ng a
hearing. This w;..., not a _~ pi'opEr° case" wh~.c?u juctify such an action
under 'GIIe ale. Our decisions have co!sitan'G3T reccgnized 'chat proper

5: s

Cases for suspension pending hearing are those vhere the employee has
C'"'r"` >~. a serious offence which ;:O»_ld jeopardize general safe:%y 32
.~lG.(Ll.'~E.C .
Carrier's operations, such 2,.n acts of the2t, altercations,
etc.

Acco'dlnglyJ we find that Cary!_n ahou1A compensate cla_nant for an;;'
loc< r to _ d between I n71 d _ 'i' 2C 7 9r '1 n ;(; '-'nvnt c'

t.

the time hi." 'o?M. °. ~. ',·)',.'o:1,^,:..~''11lZy ' held :e'v.':t'1 :C.1"'\T1.ci:. Ca~,rier also
C.)..E~1IYic',`1'~r for all GY~..';r.' .~.c;i;,.ue:> in excess o'. one yeas fr'0n the date O!' his
discharge to the data of his rainsliy'C,:.went. T?:1 .`.:.ccQ;C~.c,...,.'F'_ with ]-dale

received during the j' _r:?od :·,ftnt April 29, 1976, tC the ointe of his reinstaicmE'nt. The claim for int:c''! e,`t and other benefits not provided :('C)` in the l~.£;x'. ::~E~?lt befi,,;~:en tic. parties is lihewir denied.

Claus suMined in accordance uifiah the KnQn~;s.

Nt,TT011'~:G ?~u';:i=T,_~0-~D I1~t~ S'i.ia'.'L' DO!':'iD

By 0,vdc z' of Second Division

Attest: Ex,ecU'G 4_ve SCcrE'-C'.`-.L 7%
National Railroad Adjustment Board

Dated at Chicago, :I1.1_noi.c, this a.lavh day of hily, 19`lc>.