Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7887
SECOND DIVISION Docket No. 7801
2-N&W-MA-'79

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

( International Association of Machinists and

( Aerospace Workers

Parties to Dispute:

(

( Norfolk and western Railway Company

Dispute: Claim of Implodes:

1. That the Norfolk and ~;les tern Railway Company violated the

controlling Agreement when it improperly discharged Machinist

S. D. Krajex"ska on February 14, 1977 as a result of investigation

held on January 17, 1977.

2. That aecor dingly the Norfolk and Z;Testern Railway Company be

ordered. to restore :~s.chinist Krajefska to service and make him

whole for any and all losses retroactive to 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 ?_l, 193+.

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 dismissed from service for "being absent without permission January 3, 1977, from 7:00 a.m. to 11:10 a.m. from your assignment in the Truck Shop, Decatur, Illinois". The record shows that Claimant was indeed absent without permission for the time specified. When he telephoned the Carrier's representative at 11:10 a.m. he was advised, in response to his request, that he could remain o11 duty the remainder of his shift, but there is no indication that permission was granted for absence from the first part of the shit.

As pointed out by the organization and admitted by the Carrier, the submission to the Board by the Carrier dealt with a soparate disciplinary matter involving the same Claimant, including the transcript of the hear°ano of the separate matter. The Board has disregarded this ,portion of the Carrier's submission. The Board, however, leas received from the Organizatio:a the transcript of the hearing on 'he dipute before it, together with the
Form 1 Award No. 7887
Page 2 Docket No. 7801
2-N&W-MA-'79

Organization's submission and rebuttals by both parties, as well as related exhibits. These are sufficient for the Board's resolution of this dispute.

The Organization raises strong objection to the fairness and propriety of the investigative hearing, since it eras conducted in the absence of the Claimant.

To insure compliance with the well. reasoned requirements for a fair

hearing, especially in matters involving conduct and work performance by an
employe, the greatest caution is required for a Carrier to proceed with an
investigative hea.r~.rg in the absence of the ~ eyploye. Reasonable requests
with logical justification for pos tponcw:c-nt f rom tire Claimant and/or the
Organization representing him deserve favorable consideration. Questions
as t0 whether the Claimant and the organization received due notice in
proper time before the hearing mast also be considered before proceeding
without the employe. If the an, ploye becomes unavailable for the nearing
for good cause, even after receiving notice, there :2y well be cause for
postponement if requested. See, as one example, Award No. 7201 (Rose).

In this instance, however, there is no question that the Claimant received notice of the hearing. Ile did not request a postponement, either directly to the Carrier or through his Organization. No reasonable excuse for his failure tp appear was given, either at the hearing or ,subsequently. The Board will therefore find, as it did in Award No. 5987 (Dorsey):

"... When Claimant failed to appear at the hearing ..., after having been properly served with notices he acted at his peril; and Carrier's proceeding with the hearing in his absence was not a denial of due process."

The organization also raises vigorous objection to the reference by the Carrier to the Claimant's employment record, pointing out that this was "introduced into the proceedings for the first time when the highest officer of the Carrier denied the appeal submitted to him ..." The Board does not find that the Carrier used the Claimant's past record to determine whether or not he was guilty of the charge of absence without permission for half a day. It is fully established, however, that the Carrier may properly review an employe's past disciplinary record in assessing the severity of a penalty where responsibility for an act has been established.

In this instance, the Claimant had received a 30-day deferred suspension for "excessive absenteeism" and a 15-day actual suspension and a 30-day actual suspension for being "absent without permission". The Claimant was thus fully on notsce concerning the consequences of his failure to meet attendance requirements, and the Board finds no basis on which to interfere with the Carrier's ultimate penalty of dismissal.
Form 1 Award No. 7887
Page 3 Docket No. 7801
2-N&W-MA-' 79

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive S--cretary
National Railroad Adjustment Board

Byte' ,`-~`._
~i~o-smarie Bxasch - Administrative Assistant

Dated Chicago, Illinois, this 4th day of April, 1979.