Form l NATIONAL RAILROAD ADJUSTDENT BOARD Award No. 7°30
 SECO1rD DIVISION Docket No. 739
 2-P~fP-EW-' 79



Parties to Dispute: ( (Electrical Workers)

Dispute: Cla:un of l~nplayes: '


















Findings:

 The Second Division of the Adj-utment 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 Pmploye 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.
Form 1 Award No. 7930
 Page 2 Docket No. 739
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 Claimant, was charged with failure to report to work at the expiration of his ninety (g0) day actual suspension, thereby being absent without proper authority, hollowing a formal investigation held on August 31, 1876, Claimant was adjudged guilty as charged and dismissed from the service of the Carrier effective September g, 1876,

 Prior to August 10, 1976, Claimant had been subject to a ninety (g0) day disciplinary suspension for being absent without proper authority; said suspension became effective 12:00 Noon, May 12, 1976 and ended 12:00 Tloon, August 10, 1976. Stated on the discipline notice -issued to Claimant regarding the aforementioned ninety. (g0) day suspension, was the following advisory; "You will be expected to be available for service after 12:00 Noon, August 10, 1876,"

 The undisputed facts in the instant case, reflect that Claimant did not report to work at 12:00 Noon on August 10, 1876 and that on August l.l, 1976, Claimant contacted his acting local chairman at approximately 1:50 P.2:% 'by telephone to report that he was under doctor's care due to headaches and an extr eme nervous condition and therefore, would not be able to return t0 Z`rOrIS: for another meek or tyro. 1nmedia'tely following this teleihone conversr~tion, the acting local chairman attempted to apprise Claimant's foreman, that Claimant was ill and would not be reporting to v.-orr:, As the foreman i-r~d s not; in his office at the time, the acting local chairman left a dote containing this information with the personnel clerk who was to forward the infcW^mti ort to the foreman. Later that afternoon however, the acting local ch.air:~ian dice personally contact the foreman and related the information about Claimant first hand, Not having been informed directly by the Claimant regarding his
 s absence from work, the Carrier on August 12, 1976 cited Claimant for formal investigation.

 The Organization asserts that Carrier failed to specifically charge the: Claimant with an offense as contemplated under Rule 32 as set forth below a:> follows


Form 1 Award No. 7930
 Page 3 Docket No. 7839
 2-r~M-tea- · 79
 "furnished to the local chairman of the craft involved, but
 failure to furnish the local chairman with copy of the
 notice shall not constitute a violation of this agreement
 or provide any basis for a contention that the notice to
 the employe to report for investigation was defective.
 (c) An employe under investigation may be represented at the
 investigation by the duly authorized local committee who may
 be assisted by art officer and/or officers of the System Federa
 tion or International organization. (Attorneys for the
 Federation excluded.) if the employee does not desire the
 duly authorized local committee to represent trim, the e_Yaploye
 may act as representative and ~v.·ill be permitted to ex,~Lnine
 witnesses. In event the employe elects to represent himself,
 the 1 ocal committee will be permitted to be present at the
 investigation and be present at any conferences in connection
 with an appeal by the employe to the officer administering
 discipline if discipline is assessed. Copy of each statement
 made a matter of record at the investigation will be
 furnished to the employe and the local committee.
 (d) If it is found that the charges against the employe are
 not sustained, the record of the employe shall be cleared of
 the discipline; if suspended or dismissed, the employe shall be
 reinstated to his former position, unless otherwise mutually
 agreed, and shall be compensated for the wage loss, if any
 suffered.
 (e) Nothing herein shall. abridge the right of the Carrier
 to reinstate., with original seniority status, an employee who
 may have been dismissed for reason other than prescribed in
 the Union Stop Agreement dated January 12, 153. No employe
 will be reinstated under this paragraph (e) who has been out
 of service for more than one year without the concurrence
 of the General Chaira:an."

 The organization maintains Claimant was unjustly dealt with and damaged when dismissed from service on September 9, 1976, as Carrier was fully aware of. the reasons why the Claimant was not available to work following his ninety (90) day suspension. The organization contends that Carrier was cognizant of the fact that Claimant was under doctor's care when the ninety (90) day suspension was issued and reasons therefore, that Carrier should have been atrare of the possibility of Claimant's being under continued care at the end of the suspension period. The Organization argues that Carrier's citation in both the Notice and Caption of investigation is unfounded, as it is their position that the suspension notice of May 1.2, 176 only required the Claimant to be "available for service after Z2:00 Noon, August 10, 176," The organization takes the position that the above quoted portion of the
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 Page 4 Docket No. 7839
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 suspension notice can only be interpreted to mean that the Carrier desired Claimant simply to be available for service after 12:00 Noon on August 10., 197 and would then notify him following his suspension of the exact time to report back to work. Further, the Organization asserts that two notices both dealing with. absence and lateness by employees, the first notice issued by the Carrier originally on January 15, 3_y73 and reissued on November 14, 1973 and again on June g, 1875 and the second notice issued on November 21, 19`j4, are not consistent with one another toot is either notice in keeping with Rule 17, set foxvh below, as follows:

The Organization describes Rule 17 as being plain and simple as to what is required, contending there is nothing in the rule which implies that an employee must personally request permission in a case of sickness. Furthermore, Rule 17, the organization maintains, does not prohibit an employee from seeking the assistance of his union rebresentatz.ve or otY~ rs to advise the Carrier of his illness, nor does the rule restrict another Carrier officer from transmitting to the employee' s foreman, information regarding said employee's lay off from work due to sickness.

 Finally, it is the position of the Organization that Claimant did not receive a fair and impartial hearing and accuses the Carrier of omitting correspondence in their submission, which originated on the property in the course of handling the instant claim. Such O:n1SS1an the Organization asserts, is not in keeping with the requirements of Circular Huurber 1.

 The Carrier contends that the procedural require.Ynents of Rule 32 were complied with based on the following; Clai:nant was properly notified of the formal investigation; Claimant acknowledged-his readiness to proceed at the August 31, 1976 hearing; and Claimant had secured union representation and witnesses as permitted him under the rule. The Carrier maintains the notice of investigation was sufficiently informative as to the charge against Claimant as well. as to the tame and location of the investigation, thereby meeting the requirements set forth in section (b) of Rule 32, Carrier takes the position, that Claimant had a fair and impartial hearing, as Claimant was permitted to introduce all statements and evidence which he desired to make and enter in his own behalf and was permitted, through his representative to examine and cross-examine all witnesses, It is the Carrier's position that since the Organization took no specific exceptions to the procedure, in the subsequent handling of the claim on the property, the Organization is thus precluded from raising such procedural questions for the first time before the Board.

 The Carrier maintains that from -5ae testimony offered by the Claimant himself and the fact that Claimant had been in the service of Carrier for over twelve (12) years and that Claimant had been disciplined for the very
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 Page 5 Docket No. 7839
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same offense prior to being dismissed, Claimant was well aware of his responsibility to report or to seek permission to be absent from his supervisors rather than from his local union representative. In fact states the Carrier, the Claimant should have been even more aware of his responsibilities regarding laying off froze work than most other employees, since he had been personally counseled concerning these responsibilities by his General Foreman.

 Carrier states that Claimant did not meet his responsibilities with regard to securing permission from the proper authorities to be absent and as a result he improperly failed to report for duty and z~ras thereafter absent without authority. The Carrier points out furthermore that Clair:~ant's being absent without authority in the instant case, is not an isolated incident, but rather fits well a pattern of poor attendance which began in the year 1972 and continued up to the tune Claimant i,ras dismissed. During these years, (J_972 through l976), carrier states it n2.de several attempts by several different means to correct Claizr_ant's poor attendance record but to no avai l
 , as Claimant persisted in working only when he wished to and not securing anyone's permission when he chose not to work.

 As to Carrier's instructions regarding the proper procedure to follow in mak:i_ng notification when 1=wy-in.-- off from work,, the Carrier notes the two instruction notices issued to er:zployees were operative at different times and that Claimant had only to comply faith the notice bearing the 1 atest date of issue in order to have met his responsibilities. Carrier notes that when instructions are issued, an em-ployee has no recourse but to obey the instructions and grieve afterwards if he feels they are improper. 1n any event, the Carrier s rates, that had Claimant complied with even the outdated instruction, he would not have been disciplined. Finally, the Carrier argues, compliance with Rule 17 can only be achieved when the employee himself advises the foreman when he must be off account sickness or to personally request permission to be off from that foreman. It matters not, contends Carrier, whether either or both its instructions regarding laying off of work- are in conflict vrith Rule 7_7 as Claimant was not in compliance with either Carrier's instructions or Rule 17.

 In reviewing the record, the Board rejects the Organization's contention that Carrier violated the provisions of Rule 32 and dismisses the notion 'shat Claimant did not receive a fair and impartial hearing. Furthermore, the hoard finds no substance in the charge that the Carrier violated any requirements set forth in Circular Number 1. The Board finds persuasive Carrier's contentions regarding Claimant's knowledge of his responsibilities vis-a-vis those required in reporting laying off of work. By Claimant's own statements at the August 31, 1976 hearing, Claimant ach-nowledged his familiarity with both instructions issued by Carrier relating to the proper reporting, procedures to be follo4red when la~T-ing off froze word. Further, the Board rejects the Organization's interpretation of Rule 17 and agrees with the Carrier's position that the employee himself and not a representative
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 Page 6 Docket No. 7839
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 must either notify or seek permission from a supervisor ~rlnen in lay off status. The Board agrees with Carrier's position in the instant case, that if Claimant was well enough to telephone the acting local chaixrian to make notification he would not be re,portsng to work, that Clai.Wiant could dust as well have telephoned either the foreman or the general foreman to make said notification.

 The Board finds ambiguous to some extent, the advisory issued Claimant in his ninety (g0) day suspension notice that he was to be available for work after x.2:00 Noon, August 10, 1976. The Board believes a reasonable presumption can be drawn that the phrase, "the Claimant -~dL. be available to work after 12:00 Noon, August 10, 19'T6", meant Claimant would, in fact, report back to work at that time and on that date. Hovrever, the Board concludes, it :is possible to interpret this advisory in other ways and believes that the organization's :interpretation is, in fact, one of those other grays. That is, Claimant's availability to work after 12:00 Noon, August 10, 176, could mean ClaLrant to be in standby status awaiting notification by Carrier of the exact date he was to return to work. Under this interpretation, Claimant would of course be under no obligation to notify superv:i.sion regarding his laying off of work. Acceptance of this interpretation however, is somewhat strained, -·.n view of the fact Clariant contacted his acting local chairman on August 11, 1976 to report he was still under doctor's care and would not be able to return to work for another week or two. Nevertheless, the Board believes the advisory to C1a2rnant should have been more clearly formulated and that the Carrier should have specifically directed the Clainant to return to work at i.2: 00 Noon on August 10, 1976.
Claimant has had others, primarily his wife, notify Carrier he would not
 be reporting to work. Carrier accepted these notifications as valid, even
 though such notifications neither conformed with either of the two afore
 mentioned instructions notices regarding reporting procedures for laying
 off of work nor with Rule 17.
instruction notices issued by Carrier dealing, with laying off oz" work
 reporting procedures nor Rule 17 were enforced with unifor!nity and farther
 that the advisor,, r to Claimant concerning his return to -vrork following his
 ninety (90) day suspension was a.~rbigtzous, that Claimant be reinstated
 without back wages or other monetary or non-monetary benefits.







Form 1 Award No. 7930
 Page 7 Docket No. 7839
 2-MP-Ew-' 79





                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

    i~,osemarie 3r Assistant


Dated ~,at Chicago, Illinois., this 16th day of May, 1979.