Form 1 NATIONAL RAILROAD ADJUSTMET'T BOARD Award No. 7803
SECOND DIVISION Docket No.
7516
2-c R-E.a-
'79
`-the Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System. federation No. 1, Railway Employes'
Department, A. F. of L. - C. 1. 0.
Parties to WisIr~We: { (Electrical T,-lorkexs)
_ ~. ._._..r (
( Consolidated Rail Corporation
Dispute: Clain
off'm2lq es.:
1. Thai under the current agreement, Electrician Robert J. Fiorito
was unjustly treated when he was dismissed from the service of the
Carrier on March 1, 177.
2. That, accordingly, the Carrier be ordered to .reinstate Electrician
Robert .J. Fiorito to his former position with scniority rights
unimpaired, vacation rights, sick leave benefits and all other
benefits, that are a condition of employnent unimpaired and
compensated for all lost -Lima plus
6 % annual
interest on a,1.1
such lost wages, also reir.ibulxsement fox' 2.11 losses sustained
account loss of coverage of health and welfare and life insurance
agreements during, the time held out of service.
I''
l Yld7
nlT
S
The Second Division of the Adjustment Board, upon the whole record arid
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and enploye 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 tight of appearance at heating thereon.
Claimant was dis:n:i.sed froze service on March 1,
1977,
following an
investigative he·
7 .i, (.,.
concerning his
c n
I permission ; t:i~y~:.
1~,
.~
;sense without
~.~
fox five
working day;; between January 7 and
Ja:TU .2.'y
1! , 1971
.
Review of the
investigative hearing ri'.CUrd shows that, by'' the employe's can. testimony,
the Carrier had Food cause to find the ",1 a-iarant
improperly
absent from
~^10~.'.Fi,
The
C1.`-11::1
Of
:i.'1GlEa::C:Tl'`C.
weather
O'.1
four. of tt?C five days was
jlidigC_CJ_
to be :i.nswFf:i.cion'c reason
by the Carrier, and the Board wines no basis
to
detexyine c,thex~,l_' ^e. .In assessing the severity of the disciplinary penalty,
Carrier
CU:;S:idE:_'i.a
the ~:laai:'H!;~;t:;
ZTt>(ia Y'"C.'.Ord,
which shows two previous
'Xle~ .' ..
Z 1.01IS
suspensions within thC previous nine months for the
Su"Cle
cause. There is
:;O
Form 1 Award
No.
7803
Page 2 Docket No.
'(616
-CIt-1,4d-'
r(9
basis for questioning the severity of the .penalty by the Board under
these cix'cua7;stances.
The
Organization
raises t-vlo procedural points :i.n its p.resen'c~,:Li_on to
the Board. There i s no direct evidence oc7.'oxo the Board '(:o show that these
arwments we'r'e raised on the property, and. on this basis they are
ln`c3,M1.Ssa1.1.).E.'
before the Board. ~_;V'En
aSSiLnl:.il.z_i
they 's'reze raised
during,
the
course of the dispute, ho'c·revef, the Board
:ia_t,ds
no meza:t in them.
The first point '.s that the
Claimant did not receive a "fa:i.r and
impart::Lei:I. trial" a s 'roe:y_i.xed u_nd.;.~r. Tale 6.-A--l (a); because the ilee:r'irzg
officerp, 3_n the words o= the
OisM:zl
Tat:LCn, _ps°:.:f er.red the cr:~:r°ges; Je3_rhed
the evidence and then uSS,eSSed the penalty UV
(1.S1i:1;:S'1,!".
ThC
I'O
a"d haS
found :t n rila:.n5
F
previous uawards o. that , such circumstances are nor necessarily
pfLJ1'..C11Cik!
to a fair and 1:?'W1.`°-L:1.'-',1
tY':W'.l»
eY,%;,."?1'!nHtiiW Of the
1:cGOx''J.:3
ShOV7S t).iF,.'f. the Cla'.::~';,'_1n
VT'"aS ~,:L~rPx1
fLlll O-
,P~JO1"`Ul.it'1.'ty
to Ex~i.ifL^_n his
conduct
and- that hC
ivdS p?_'O'):?^ly,
represented by the In de°_'~F;2.17
33 t'E:^e
'e1 .t10~1.
'7~. . Ou
its position, the Organization cites AS·;aY'd
NOe
6`T9)
jBiSChC-'::),
which,
in finda_nE~ that the cle.e_ra_~.nt w;,s deprived of a fair hearing, stated in
part
_~,
1}ie
Carrier ^~,_pex·v:isor T;ho preferred the
charges
again;'t
claimant srvs the _cli:i.c_f witness
nr_7Ni,
cla_iwr!t at the
hearing, put he also 7rei_~;.c-'d the eQuence and assessed
the .penalty of dismissal following Tim investigation...''
(.~,'~:17pi1c.`1S1S
added)
Tn the )resent saes it cannot be said that the hea x:ing o:E'f:icet° was
the "chief witness aZa.ns t cl wir,-ant'°; indeed, the facts wate permitted
to
speak for themselves,
V.J
til the Cl<:,1.t:1S·n-G offered
full opportunity for
rebuttal.
'the Cr,anizatioznts second. paint/ is that the Clayrran-L; should be
exonerated -because ho
complied with
Mule 22; -which reads as follows:
"An eniployeunavoid~ably detained frown zrorl-, on account
of illness
or for
oiler food and sufficient causes
-he'll
notify
his
forer".r-La not later than the close of the
first day of absence,, if possible."
As explained
in a_z;u.rd ?`~o. W)18
and :in nuz:le,rous prc:T·=ions s.ivwx·ds,
`u..1e
22 has
Specified jrrlz:r-pc-7."~C
S
requiting
absence reporting b7.?'G does not, by
itself, serve to
CO:xd`.::,C
absenteeism -- ; g;' :datCd
an
x:15 instance over
a period of zt least n.ne ro:vths. lur'cheY,)ia1e ?2 refers to "good :.end
sufficient causes" which were not found in thIs instance.
A V, fi R P
Claim denied.
Fo nn 1
Page
3
Award No.
7803
TTA'I'TONAT, RA.:I Lx?,OAD AD.TUSI'~uENT I30AIRD
By O:rde)2 of Second -II)d-vision
Attest: h,_~ccutive Ser..retary
National Ra-; l;raara Adjwt3r.ent
Board
Dated at ~;h:i.cavos 11l.`inaa.s, this :J_~`~h day of aanua,i-y,
J.g75'a