Form 1

Parties to Dis;pute:_

Dispute: Claim of

NATIONAL :ft.~1IZROAD ADJUSTMENT BOARD Award

SECOND DIVISION Docket

The Second Division consisted of the regular members and in addition Referee George S. Roukis when award was rendered,

803
7943

2-EJ~:T,I-cM- · 79

System Federation No. 6,

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

Elgin, Joliet & Eastern Railway Company

Railway Employer'

1. That the Elgin, Joliet & Eastern Railway CoY,pa,ny, hereinafter referred to as the Ca:.riex·, nn.properly suspended Cams an Van S. Smith, hereinafter re:E'er_red to as Claimant, :nor a one hundred and

twe·2ty--two (122) day ~je,r_iod cominenc:i.ng Au.,,mst 13, Deceriber 12, 1977 as a result of an invest:iga,ta.an 28 and 29, 1977. ;;aid suspension is :in vioa_at~ion

Rules 100 as vTe11 as being arbitra.x;y, capricious,

unreasonable and an abuse of r::ama .":rial d.:i_sc,retion.

Findings:

1977 through held on July of Agi.·cenent vx2fair, unjust,

That the Carrier be ordered to cc;rzpensate Claimant for eight hours (8 hours) pry at the pro rata rate for each day of the one hundred and tienty-two d.a.-y suspension and that Carrier be ordered to clear the Clad-mant's record of this suspension.

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 employer involved. in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 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 originaJS.y dismissed from service following an investigative hearing held on July 28, 1977. The proceeding was scheduled to determine his responsibility in connection with his alleged absence from work on June g, 18, and 23, 1977 and his alleged absence from such assignment on July 8 and 16, 1977 without reporting off.

Because of the organization's appeal and follow up conference on November 29, 1977, carrier subsequently reduced the aforesaid penalty to a 7..22 calendar day suspension and noted that it would not object if the organization processed a claim for the time claimant lost.
Form 1 Award Pro. 8034
Page 2 Docket No. 793
2-EJ&E-CM-' 79

In examining this case, it is important for us at the outset to evaluate carefully the procedural objections raised by claimant regarding the conduct and format of the hoaxing. The organization claims that carrier failed to advise claimant of the :precise ,rule violations, and permitted the hearing officer to act as judge, jury, prosecutor and witness in the administrative investigation. It concluded that cla-.°unant was not afforded a fair and izrrpar tial. hearing.

Our review of these contentions iaithin the context of the investigative and appeals record does not support these assertions.

Claimant zra.s more than adequately informed of the ;precise nature of the disciplinary charges to ,prepare and conduct an intelligent defense and not prejudicially affected by the heavin.r.,>- officer's demeanor,

This Beard has cons^i.stently held that the eplicit articulation of the

charges prof'erred. in the notice of disc~__plino is precec'zux~L--..'i.3.y proper if they
alert the cla-3in.azit as to the nature of the case. See., :For exE,~zple, Second
Division Award 6346. P,breosrer, in the instant ct:isgate there Sras no
indication in the inve;,~ta gative transcript that claimant questioned this
sap.pR.sed defect.

On the other hand, respecting the claim's merits, we do not find after searching review of the record, that claimant/ complied with the letter and intent of Rule 116(b) when he was absent from the assigz-2nents on the dates in issue.

The pattern of events and the blatant inconsistency between his

statements that he visited The Harranond Clinic and was treated for an ear
inflection by a specifical yy naaned. physician and the Clinic's business
manager's written and unrebutted affix-mations contradicting and denying
these representations is d:i.spositive of the substantive question. The
business manager clearly stated in his letter to the Division General Car
Foreman that "As I informed you at that time I could find no record of his
having been a patient at our clinic at that time. As a matter of fact, Dr.
Chael was himself on sink leave during the alleged treatment period having
commenced same in January of 1977."

Based on this analysis, we find no rationale basis for concluding otherwise. The suspension penalty a-rtposed was not excessive, arbitrary or an abuse of managerial discretion, when considered against his employment record and, in fact, is somewhat lenient. We will deny the claim.

A W A R D

Claim denied.

Foam 1 Award No. 803+
Page 3 Docket No. 793
2-EJ&E-CT4-' 79
NATIONAL RAIMOAD ADJUSTIEE`I' BOARD
By Order of,Second Division

Attest: Executive~Secretary
National Railroad Adjustment Board

By _ /..._ : ~ .7, .f_ ~ /~-.~-.~ ~ '2.--i

~..-Rble na1°:ie Brasch - Iici~nini st:cative Assistant

Dated at Ch:i_cago, Illinois, this 8th day of August., 1979.