Form 1 NATIONAL. RAILROAD ADJUSTMENT BOARD Award No. 8528
SECOND DIVISION Docket No. 8571
2-SISF-SM-'80
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
(
( St. Louis-San Francisco Railway Company
Dispute: Claim of Employes
1. That the St. Louis-San Francisco Railway Company violated the controlling
agreement, particularly Rule
35,
when they unjustly dismissed Sheet
Metal Worker John Hiller from service following investigation held
on January
15, 1979.
2. That accordingly, the St. Louis-San Francisco Railway Company be ordered
to compensate Sheet Metal Worker Hiller as follows:
a) Compensate him for all time lost from December 18,
1978,
until
returned to service;
b) Restore him to service with all seniority rights;
c) Pay premiums for hospital and medical benefits;
d) Pay premium for group life insurance;
Pay
6171.fo
interest on all back wages.
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 a mployes 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 water service mechanic, was discharged from service for alleged
absence from his assigned duties during the period December 20,
1978
to January
8,
1979.
Pursuant to proper notice, a hearing was held on January
15, 1979.
Though
he received both oral and written notice, claimant did not attend the investigation.
The organization raises an array of purported procedural deficiencies in the
hearing process which, according to the organization, operated to deprive the
claimant of a fair hearing. This Board, after carefully reviewing the record,
concludes that the claimant received a fair and impartial hearing in accord with
Form 1 Award No.
8528
Page
2
Docket No.
8571
2-SLSF-SM-180
Rule
35
of the applicable agreement. We have also considered each of the
organization's five procedural objections to the hearing. First, the claimant'::
failure to attend the investigation does not automatically render the hearing
process impotent. Otherwise claimants would rarely appear at an investigation.
The claimant's "stuck in the snow" excuse is hardly persuasive since he lived
only five blocks from the hearing site. Furthermore, he had oral notice of the
investigation (on January
3, 1979
when the hearing date was set and written
notice by registered letter dated January
8, 1979.
In spite of claimant's
absence, the Local Chairman presented an excellent, though unsuccessful, defense
on the claimant's behalf. Second, the absence of witness Pyatt did not undermine
the integrity of the hearing process because his failure to appear was the fault:
of neither the carrier nor the organization. The carrier notified Pyatt, an
employee who was being held out
of
service, that attendance at the hearing was
mandatory. But, the carrier is not empowered to physically compel witnesses to
come to the hearing. In any event, Pyatt was not an indispensable witness because
documents in his handwriting were sufficiently authenticated and identified by
other witnesses at the hearing. Third, the carrier comes very close to upsetting
the fairness of the hearing by its inexplicable failure to promptly relay an
urgent telephone message
to
the Local Chairman during the hearing. The message,
from the Local Chairman's wife, concerned claimant's inability to attend the
hearing due to the snow. As we discussed, above, claimant's excuse is totally
baseless. While this Board has determined that delivery of the message would
not have altered the results
of
the hearing, the carrier should be aware that
this Board will not tolerate carrier attempts to unreasonably manipulate the
hearing. The carrier's action here falls very close to such manipulation.
Fourth, the hearing officer properly restricted the scope of the organization's
cross examination to subject matter relavant to the inquiry. To maintain an
orderly hearing process, the hearing officer should preclude questions relating
to tangential events. Lastly, though the conducting officer who also assesses
discipline against the claimant does
so
at his own peril, we find the multiple
role did not prejudice the claimant. Thus, we must overrule each of the
organizations five alleged procedural defects.
On the merits, the carrier presented substantial evidence to support the
excessive absence charge. On December
18, 1978,
the claimant was absent and he
called his foreman to say he was moving but he would report to his assignment
the next day. He failed to show up for the next four days and did not call in
until after December 22,
1978.
In the past, the claimant had been repeatedly
warned that consistent failure to report to his assignment would lead to formal
disciplinary action. On July 25,
1977,
the claimant signed and acknowledged
a written warning regarding his excessive absence without proper authority.
The record discloses that, rather than improving his attendance record, the
claimant adopted a lackadaisical attitude about reporting to his assigned duties,.
He was absent often for spurious reasons and, on many occasions, did not give any
reason for his absence. Similarly, in light of claimant's poor prior record,
the carrier's decision to discharge the claimant is commensurate with the offense.
In the notice dated January
8, 1979,
the claimant was properly apprised that his;
prior atter_d:ince record ;could be cc.nsidered in determining the penalty if the
charges should be sustained. Therefore, we will not reverse the carrier's assessment of discipline.
Form I Award No.
8528
Page
3
Docket No.
8571
2-SISF-SM-180
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
s rnarie Brasch - Administrative Assistant
Dated a Chicago, Illinois this 3rd day of December, 1980.