Fohrn 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7`l55
SECOND DIVISION Docket No. 7653
2-EJ&E-CM-'7e

The Second Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award was rendered.

( System Federation Pdo. 6, Railway Employes'

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

Parties to Dispute: ( (Carron)
.-.. __, ~ (

( Elgin, Joliet and Eastern Railway Compan

Dispute: Claim of Fnni?loyes:

1. That as a result of an investigation held on Tuesday, July 20,

1976 Car Inspector Glen Sharpe ;'gas dismissed from the service of

the n ~~, ~.,tern Railway Co~ py. 5'Said dismissal of

Elgin, Joliet ~; i~ ~..,~ .·n.._~:. ,

Cax Inspector Sharpe as arbitrary, capricious, unfair., unjus~.

unreasonable, excessive and in violation of the current working

agreemerit, speci fica,lly i u1 a a_00 (old Rule 35).

2. That the Elgin, Joi :Le t & Eastern Railmay Company, hereinafter referred to as Carrier, be ordered to reinstate Car Inspector Glen Sharpe, hereinafter referred to as Claimant, to the service of the Carrier with seniority, vacation and all ether rights unimpaired in addition to compensation at the pro rata, pate eight (8) hours for each day Claimant is withheld from tine service of the Cartier until such reinstatement is in effect.

Findings:

The Second Division of the Adjustment Board, upon the whale record and all the evidence, rinds that:

The carrier or carriers and tile 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 Adjustnent Board has jurisdiction over the dispute involved herein.

Parties to said dispute v;a.:i.ved right of appearance at hearing thereon.

Following an investigative hearing, Claimant was dismissed from service on July 26., 197fox failure "to mare a proper inspection of EWU 0,134543 located on :.~r27 T:u'~p July 6th, 1..976." The record shows that the car de:reloyaj. a hot box shortly after :LcaZrirq the hard, nnci later inspection ::o;.o::,la,z. there was a flat WE, ::rC:dF_;E: I-C',:iSS11ig from 3. journal box. Evidence furthc):, showed that:, the Claimant was rc.ransible .for inspection of the car prior to its leaving the yard.
Foam 1 Award TvTO. 7755
Page 2 Docket No. 7653
2-FJ&s,-CM-' 78

The Organization disputes the dismissal action on the grounds that the Claimant was not present at the investigation hearing and further that no convincing proof was set forth to show that the Claimant was remiss in his duties.

Rule 100 of the applicable Agreement reads as follows:

"(a) Ido employe should be disciplined without a fair hearing by a designated officer of the Carrier. Suspension in .proper case.- pending a he_arinn, which shall be prompt, shall not be deemed a. v5olatiorx of this rule. At a reasonable time prior to the hearing he is entitled to be apprised of the -precise charge against rim. He shall have reasonable opportunity to secure the presence of necessary z'ritnesses and shall ~ have the right to be there represented by counsel of his choosing, selected from an employe of his own craft.

(b) If the judo nent shall be in his favor, he shall be

reinstated arid compensated for the wage loss, if any,

suffered by him.

(c) Any employs: willfully violating arms of the rules of this Agreement is subject to suspension.''

Rule 100 clearly establishes an e=-r_p,loye's "right" to be at his inve.sy ga~- tive hearing. Claimant was afforded this right by letter notice dated
July 7, 76, fox. which _._,n~- signed recert :~ n the same day, He thus

1the ~ Claimant _

had 13 days prior to the investigative hearing on July 20, 176, to .prepa,ve
his defense or to request a postponement. He did not appear at the hea,rin:-;
and had not given notice of reason for his fai lure to appear either to the
Carrier or to the organization. In the course of the claim processing, no
reason was ever set forth for the Claimant's failure to appear.

The Board finds that the Carrier properly went forward with the hearing on July 20, 176. Claimant's representative eras present for the defense of the claimant's position. '.1'o defer the hearing simply on the basis of the employe's non-appewratuce would, i n effect, permit the employe to postpone indefs natelT,r the hearing and any conscquetzt discipline. This would not :serve the purpose of ,.~;ule 100. Claimant simply failed to exercise the "right" provided him by the rule.

A> occasionally happens in such matters, the determination of the claimant's responsibility for Niling to detect a faulty journal boz during inspection 7_S bated Oil C:irCa_yP;:'L::i.Tt::.;zl__ evilz.:';:1cE:'. Such evidence vas, 1'_O':'?.: e'.^, offE:r eri to the hear ir;y officer in detail and was sof'f iciE:nt for the KeaNn.; officer to reach a reasonable. conclusion that the claimant was 11,egli;ent in his duties. The Board finds no reason to second-guess this finding.
Form 1 Page 3

Award No. 7755
Docket No, '; 653
2-EJ&E-CM-' 78

As to the degree of discipline, Carrier gave proper consideration to the employe's past record, which included two disciplinary suspensions for absenteeism. The Board :Finds the degree of penalty within the proper discretionary judgment of the Carrier.

A W A F; D

Claim denied.

Attest: Executive secretary
National Railroad Adjustment Board

ItATTOTIAE ADJ-TJqT-V!,,1'T BOARD
By Order of Second. Division

~3.'t.J de _.aS1,4G.tp',.

Dated a~ Chicago., Illinois, this 20h day of l~41osrember, 19 78.