Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8523
SECOND DIVISION Docket No.
8548
2-D&RGW-FO-'80
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Denver and Rio Grande Western Railroad Company
Dispute: Claim of Employes
1. Under the current controlling Agreement, Mr. Jesse A. Ahmed, Laborer,
Denver, Colorado, was unfairly dismissed from service of the Denver
and Rio Grande Western Railroad Company, effective November
2, 1978.
2. That, accordingly, the Denver and Rio Grande Western Railroad Company
be ordered to reinstate Mr. J. A. Ahmed to service with seniority
rights, vacation rights, and all other benefits that are a condition of
employment, unimpaired, with compensation for all lost time plus
annual interest; reimbursement of all losses sustained account loss
of coverage under Health and Welfare and Life Insurance Agreements
during the time held out of service; and the mark removed from his
record.
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 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, was discharged after notice and a hearing on November
2,
1978
for habitual failure to report for duty with the latest absence occurring
on October
26, 1978.
The underlying facts are uncontested. Claimant was
regularly employed in the mechanical department at the Burnham Shops in Denver,
Colorado. During the previous July, claimant was often tardy and absent. On
July
28, 1978,
claimant received a warning and acknowledged that further
absenteeism would result in probable dismissal. Thereafter, the carrier granted
claimant a three week leave of absence so he could give his complete attention
to his personal problems. Claimant was due to report back to his assignment at
the conclusion of the leave of absence on October
16, 1978
but he failed to
report until after his shift began on October
17, 1978.
Between October
16,
1978
and October
24, 1978,
claimant missed five out of seven working days. On
October
25, 1978,
claimant was absent again but he called his supervisor and the
claimant promised to report to work on the following day. The claimant failed
to report to his assigned duties on October
26, 1978.
The claimant was absent
Form 1 Award No. 8523
Page 2 Docket No. 8548
2-D&RGW-FO-'80
because of personal problems. Whenever he reported to work, the claimant
competently performed his duties.
Excessive and habitual failure to report to an assignment is sufficient
grounds for dismissal. Second Division Award No.
7898
(Weiss). The carrier can
hardly maintain normal operations unless its employes regularly report to work.
Second Division Award No.
7870
(Roukis). The evidence in this case is overwhelming that claimant was consistently absent which jeopardized the normal
operation of the carrier by requiring last minute substitutes and other
disruptions. Only three months before,the claimant had been warned that
continued absences would lead to severe discipline including probable discharge.
At the hearing, the claimant admitted to his infractions:
"Q. I believe you indicated that you did neglect your duty?
A. (Claimant) Yes, Sir.
Q. You did this of your own free will?
A. (Claimant) Of my own free will? I can't submit to that.
Circumstances being about change, you have to do what you
have to do."
Thus, the carrier proved that claimant was habitually absent.
Lastly, the employes urge this Board to modify what they term an arbitrary
penalty because of mitigating circumstances consisting of the claimant's
preoccupation with personal problems and his competent performance on the job.
Personal problems are rarely a justification for irregular attendance. Second
Division Award No.
7778
(Van Wart). Furthermore, the carrier's conduct was
hardly arbitrary. On the contrary, the carrier made several attempts to
accomodate the claimant by granting him a leave of absence to rectify his personal
problems and by warning the claimant of the consequences of continued failure to
protect his assignments. Even at the hearing, the claimant refused to make a
firm commitment to improve his attendance record if allowed to retain his
position. Because the carrier gave the claimant reasonable opportunities to
both resolve his personal problems and eliminate his absences we will not upset
the carrier's assessment of discipline.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
:; Ie.
Rosemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 3rd day of December,
1980.