Form 1 NATIOTIAZ RAILROAD ADJUSTP.R,'IU BOARD Award No. 8145
SECOND DIVISION Docket No. 8055
2-AT&SF-FO-' 79

The Second Division consisted of the regular members and in addition Referee Rodney E. Dennis when award was rendered.

( System Federation No. 97, Railway Employes'

( Department, A. F. of Z. - C. T. 0.

Parties to Dispute: ( (Firemen & Cilers)
(
( Atchison, Tope'_~a and Santa Fe Railway Company

Dispute: Claim of Employes:

(1) That, the Carrier erred and violated the contractual rights of Mr. John Henried Raanirez when they removed him from service as a result of an investigation held on July 12, 1977 and re-opened on August 17, 197 7 .

(2) That, therefore, vir. Ramirez be returned to service with all rights, privileges and benefits restored.

(3) That, he be m~.de whole for all health and welfare benefits, pension benefits, uneninloyznennt' and sickness benefits and any other benefits he i,,-ould have earned. had he not been removed fro.! service.

(4) Further, that he be comj~ense.ted for all lost time, including

overtime and holdday pay pluz 6 " annual interest on all lost i°a ges

and that such lost time be counted as vacation qualifying tip=e.

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 exnploye 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 right of appearance at hearing thereon.

Claimant, a laborer with a seniority date of. October 25; 1972, 4ras discharged from service for unauthorized absence from imrh from June 20 to July 5, 1977, and for failin:, during this period, to obt-.in V:, proper leave of absence. Carrier cites iiule B, 2o:can 2626, St:~.ndard General 1~ale s for Guidance of Employees, revised 1975 edition, as its authority for this action.
Form 1 Award lto. 8145
Page 2 Docket No. 8055

2-AT8,-F-FO-'79

The Organization protests the carrier's action on the basis that claim,;Lnt did not rece-.-,re a fair hearing. In wdditia-i , it claims that carrier ?-.new he would be off. In the organization's vie:,r, his absence eras legitimate, since he has a medical history of back trouble and was under a company doctor's care.

The events that gave rise to this dispute may be summarized as follows:;

Claimant was absent from work from June 20 to July 5, 1977. On July 6, 1977, he appeared with a union representative at the office of the Superintendent of Shops to request a leave of absence. He eras denied that leave. The record reveals that on June 24, 1977, claimant was sent a certified 1 etter remindi ng him that he should contact the u'unerintendent's office regarding his absence from irork and obtain an authorization for leave. This letter, marl:ed unclaimed, was returned to carrier by the post office. On July 5, 7_0177, cla-mant was advised by certified mail that a formal investigation to develop tine facts and place responsibility for his alleged unauthorized absence would be held on July 12, 1977.

An open chair investigation eras held as scheduled on July 12, 1977. As a result oz" this investigation, clainant ,;ras found to have violated Rule 13. He was removed from service. Subsequent to tile July 12 hearing, it was learned that ciai:::ant charged that he d-_d not receive notificaton of the hearing until after it had ta:cen .place. On request of the local chairman, the. investigation was reconvened. On August 17, 1Q177, claimant came to the investigation; his srfe appeared to testify on his behalf. 'he record of the July 12th hearir:- was read into the record a t the August 1'7, 1977, hearing. As a result of this second hearing, carrier again notified claimant that he eras dismissed from service. The organization filed a claim for reinstatement on October 26, 1977. This claim for reinstatement rested on the following arguments.

First, the company witnesses were not present to be questioned by the union representative. Second, the grievant stated that carrier was notified on all dates that he was absent, account of his back, for which he has proof from his doctor.

The organization has pressed the point that carrier witnesses who testified at the open ch=~:.ir heard n-, ;~:x a not present for questions at the reconvened hearing on August 17, 1977. It concludes that failure of tile carrier to make its witnesses available for cross-examination at the second hearing constitutes a v i of anon of the r equirements of a fair hearing for claimant. As such, claimant's claim should be upheld by the Board.

The organization's arguments on this point cannot prevail. On numerous occasions this board has ialed that objections to the way in which a hearing is conducted must be made at the hearing or else the right is waived ("econd Division AT,razd No. `7955, Weiss). The record does not contain any indication that the organization representative or the claimant requested or was denied the presence of any vr.tnesses or information at the hearing.
Form 1 Award No. 8145
page 3 Docket !do. 8055

2-AT&SF-FO-'79

The organization submitted for this Board's review, two awards on the issue of a fair hearing (Awards No. 17 028 and No. 21 2_35, First Division). A careful study of these afrards reveals that they are not on point in this case. In azrard ITO. 17 028, a majority of tie First Division Board decided that a claimant did not receive a fair and impartial hearing, even though claimant did not protest the procedure of the hearing during proceedings. This decision, ho-.,-ever, was based ors the fact that charges were levied against claimant-, but never argued at the hearing;, and on what the Board considered jlmproper use of ca-1mant's past record. The Board decided that claimant's past record had been used to .prove guilt and that eras inapproprie~te. Those facts are not present -in this case. Award No, 21 235 involves the reading of hearsay statements into the record of w hearing and not callin as a witness the Person who made the statement, even though he was present at the hearing. The instant case involves reading into a second hearing record the direct testimony of two witnesses from tile first hearing. To element of hearsay is involved here.

As to the merits of the case, here, too, carrier's position must be upheld. C1aii-.ant vas not: fled by a letter on June 24th that- he should app; -_~r at the Superi_ntendcnt's Office and rn~:.e arran ements for a leave. Had he done so, this case would not be before the Board. He did. not ahCear; as the record shows, he claims that he did not receive the June 24th letter.

The fact that this letter eras not received by cl--,imam goes unexplained. There is no evidence i n the record before this Beard to indicate that f%~.--u:°e of this letter to be received by cl-,ir_,ant i-,as the faLi?t of carrier. Numerous avrards by this L)ivi lion, as -,,,,ell as those of other Divisions of this Board, clearly support the propositI.on that once a notice is properly mailed, it is up to claimant to demons trat; e why he did not receive the notice, if he chose to use failure to receive notice as a defense in an action.

The facts surrounding claimant's absence from work from June 20 to JuJz~r 5th and the fact that he appeared and requested a leave of absence on July 6th are not in dispute. vinether he ini'orned his foreman of his intent to be off or whether his wife called in and reported him off each day that he was absent, however, is in dispute.

From the record before us, it cannot be concluded that the decision of

carrier on these two points i s not the correct one. Testir:ony by two
carrier witnesses indicates that no calls were rece:i.ved by them concerning
the claimant's absence or r eqnes ti ng a leave. China nt, by his own teszi.^:o;T,
indicates that he did not asp for a leave until July 6, 1977, nor did he
call in and report himself off. The testimony of clairlant's wife that she
called. each day and tal':ed to a person n-°.ned Betty must be ve=-hed against
the testimony of Foreman h1unson and Clerk -Hall, vho both testified that
no cal-Is were made. At the izlvest-;gatinn, carrier chose to give greater
weight to the tes tirr~ony of ::ninson and 2l all than it did to the testimony
of cla=irant's wife.
Form 1 Award No. 8145
Page 4 Docket No. 8055
2-ATFSF-FO- `79

We see no reason to consider this decision as other than reasonable.

Claimant was absent without authorization from June 20 to Jv-lj 5, 1977. He did not aptly for a leave of absence within the ten-day period specified in Rule 13, Form 2626. A review of claimant's past record reveals that he has been absent without authorization on five previous occasions with two of these five violations occuring ;atithin a six month period prior to his last absence. Based on the facts of this case and claimant's poor attendance record i n the past, we see no reason to overturn the action of carrier in this instance. IITo arbitrary or capricious behavior on the part of carrier is evident. Consequently, in keeping with the Board's policy in this regard, this claim must be denied.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTiETU BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

Rosemarie Brasch - Administrative I~ssistant

Date- at Chicago, Illinois> this 24th day of October, 1979.