Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
$$7(
SECOND DIVISION Docket No. 8562
2-CR-EW-182
The Second Division consisted of the regular members and in
addition Referee Francis X. Quinn when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employee:
1. That at the Wayne Junction Facility the Consolidated Rail Corporation
violated the current agreement when 2nd Class Lineman Bernard Gilliam
was unjustly treated when he was not afforded a hearing in accord with
Rule 34.
2. That the Consolidated Rail Corporation violated Rule 34b and 22 when
Lineman Bernard Gilliam was improperly dismissed from service on
January 15, 1979.
3. That Lineman Bernard Gilliam be restored to service with seniority
unimpaired, paid for all lost wages and benefits and all other rights
and benefits be restored to him because of the improper dismissal.
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 employee 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 aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
During the period between November 28, 1978 and January 5, 1979, Claimant was
regularly assigned as a Lineman 2nd Class at Wayne Junction Electrical Department,
Philadelphia, Pennsylvania.
Because of his excessive absences, Claimant was notified by letter dated
January 5, 1979, to attend an investigation on January 12, 1979, in connection with
the following charge:
"Flagrant absenteeism on November 28th (Tues.), Nov. 30 (Thurs.),
Dec. 1 (Fri.), Dec. 13 (Wed.), Dec. 21 (Thurs.), Dec. 22 (Fri.),
Dec. 23 (Sat.), 1978, Jan. 3 (Wed.), Jan. 4 (Thurs.), Jan 5
(Fri.), 1979 - Total 10 days."
The investigation was held as scheduled. As a result of the investigation,
Claimant was notified by Form G-32, dated January 15, 1979, that he was dismissed
in all capacities, the "Outline of Offense" reading the same as the charge quoted
above.
Form 1 Award No.
8876
'Page 2 Docket No. 8562
2-CR-EW-182
Ample evidence exists in the record to clearly establish Claimant's culpability
in this matter,
"Testimony of Electrical Supervisor G. W. Meyers
Q. Mr. Meyers, on January 3, 1979, Mr. Gilliam stated that he
received a call at approximately 9:00 A.M. from Mr. Matzinger.
He stated to Mr. Matzinger that he had a cold and was going
to see his doctor. Did you receive any doctor's certificate
or anything of this nature stating that he was sick?
A, No, I didn't. The reason that I was told was that he had
overslept. The phone call was made at 9:10 A.M. and his
mother woke him up. Mr. Matzinger was speaking to his
mother.
Q, Mr. Meyers, also on January 5, 1979, Mr. Gilliam was off
absent, did he call your office or did your Power Dispatcher
receive a call?
A, No air.
Q, Mr. Meyers, do you know if the Power Dispatcher received a
call on January 5th?
A, Yea, I called the Power Dispatcher and he received no word
from Mr. Gilliam.
Q. Mr. Meyers, about Mr. Gilliam's absence an November 28th, were
you advised long before November 28th, somewhere around
November 22nd that Mr. Gilliam had a Court appearance?
A, Yes, that conversation took place in my office with yourself
attending with the Chairman Harvey Lindenmuth attending and
Mr. Gilliam attending and I made the statement that this will
be a charge of one day's absence against Mr. Gilliam which could
be erased if he brought me the Court Notice of some document
showing that he attended Court that day. He did not bring
me anything therefore, I charged the 28th of November as a day's
absence.
The Claimant's discipline record, which was incorporated in the transcript
shows a history of excessive absenteeism. On February 15, 1978, Mr. Gilliam was
charged with being absent a total of 49 days and was assessed 14 days actual
suspension. Again, on June 19, 1978, Mr. Gilliam was charged for missing another
9 days for which he was assessed 30 days actual suspension. Then, on September 15,
1978, Mr. Gilliam was dismissed in all capacities for being absent 5 ,additional
days, but he was later restored to service by the Carrier on a lenien~:y basis.
The principle involved in the present issue has been ruled upon by the National
Railroad Adjustment Board in various decisions. Excerpts from the Findings of two
of those decisions are quoted below:
Form 1 Award No.
8876
Page 3 Docket No. 8562
2-CR-EW-182
Second Division Award 5049 - Referee Johnson
"Nothing in the Agreement obligates the carrier to attempt to
operate its railroad with emplay~es repeatedly umeb1g or
unwilling to work the regular ant ordinarily accepted shifts."
Second Division Award 6706 states:
"Having established that the Claimant was excessively absent from
work, that he had a record of tardiness and early quits, it is
quite proper for the Carrier to consider his work record before
assessing a penalty. This record establishes without question
that the Claimant had had a running poor attendance record for
almost all of his term of employment."
The Employer cite Carrier violations of Rules 22 and 34 (b) which are contained
in the Agreement between System Federation No. 109 and the former Reading Company,
effective January 16, 1940. Those provisions state:
"RULE 22 - Reporting Off
In case. an employee is unavoidably kept from work he will not be
discriminated against. An employs detained from work on account
of sickness or for any other good cause shall notify his foreman
as early as possible. When known, employer are expected to make
advance arrangements if necessary to be absent."
"RULE 34 - Grievances and Discipline
(b) No employs shall be disciplined without a fair hearing by
designated officer of the Carrier. Suspension in proper cases
pending a hearing, which shall be prompt, shall not be deemed
a violation of this rule. At a reasonable time prior to the
hearing, such employs and his duly authorized representative will
be apprised in writing of the precise charge and given reasonable
opportunity to secure the presence of necessary witnesses. An
employs shall be given a letter stating the cause of any discipline
administered; if suspended, the suspension shall date from time
taken out of service. If it is found that an employs has been unjustly suspended or dismissed from the service, such employs shall
be reinstated with his seniority rights unimpaired, and compensated
for the wage loss, if any, resulting from said suspension or
dismissal, such loss being the difference between the amount
earned if otherwise employed and the amount he would have earned
in his regular
assignment."
Rule 22 has little relevance here because the issue is the Claimant's excessive
absenteeism and not whether or not he notified the Carrier on the days he was absent.
That it would be a misreading of Rule 22 to use it in defense of an employee's
excessive absenteeism has been supported by National Railroad Adjustment Board
Awards, excerpts from two of which are quoted below:
Form 1
Page 4
Award No.
8876
Docket No, 8562
2-CR-EW-182
Second Division Award 7748 - Referee Marx
"The provisions of Rule 22, whatever other purposes they may serve,
are not a defense against chronic absenteeism. As held many times
before the Board, the employer has a right to expect regularity
in attendance."
Second Division Award 7803 - Referee Marx
"As explained in Award No. 7748 and in numerous previous awards,
Rule 22 has specified purposes requiring absence reporting but
does not, by itself, serve to condone absenteeism -- aggravated
in this instance over a period of at least nine months."
As for Rule 34(b), the record indicates the Claimant was given a fair and
impartial investigation at which he was represented by a duly accredited organization
representative who was permitted to cross-examine witnesses and present evidence
on behalf of the Claimant.
Our review of the record concludes that the Claimant was given a fair and
impartial hearing and there is no evidence in the record of this case that any
action of the Carrier was an abuse of the discretion vested in it or was prejudicial
to Claimant's rights. Furthermore, there was no showing during handling on the
property that any action of the Carrier denied the Claimant due process or was
violative of any rule of the schedule agreement. Moreover, there is no evidence
whatever that the Carrier was biased, arbitrary, capricious or unreasonable.
Therefore, we must deny the claim.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
B
marie Brai
7y
4
20.
arie Bras Eh - Administrative Assistant
Dated a Chicago, 7