F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8881
SECOND DIVISTON Docket No.
8757
?_-CR-MA-'
X32
The Second Division consisted of the regular members and i n
addition Referee George S. Roukis when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
( Consolidated Rail Corporation
Dispute: Claim of Employer:
1. That the Consolidated Rail Corporation be ordered to restore machinist
Steve Lynn to service and compensate him for all pay lost up to time
of restoration to service at the prevailing Machinist rate of pay.
2,
That Machinist Steve Lynn be compensated for all insurance benefits,
vacation benefits, holiday benefits, and any other benefits that may
have accrued and was lost during this period, in accordance with Rule
J-1 (e) of the prevailing Agreement which was effective April 1,
1976,
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
'Cfic·
carrier or carrier; and the employe or employes involved in this dispute
arc rervprct l:vcly carrier and employe within the meaning
cat
the Railway Labor Act
as approved June 21, 1931E.
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 dismissed from service on April
6, 1979
following an investigative hearing held on March
29, 1979
on the following charges:
"For your continued absenteeism and for failing to work a 1+0
hour week, as per your contract, on the dates listed below:
2-22, 2-23, 2-24, 2-25, 3-1, 3-2, 3-3, 3-4, 3-11, 3-14, 3_17..
He appealed this disposition.
In defense of his position, CIsimant contends that he complied with the
controlling Agreement, particularl,r, Rule
22,
since he notified Carrier that he
would be absent on the aforesaid dates.
Carrier contends that his absences were not excused by his perfunctory
compliance with Rule 22, since he was successively disciplined on three recent
occasions for excessive absenteeism. It asserts that Rule 22 was not intended
to be used as a defense against chronic absenteeism and the decisional law of
the National Railroad Adjustment Board affirms its interpretational position. It
Form 1 Award No.
(3881
Page 2 Docket No. 8757
2-CR-MA-182
argues that he was progressively disciplined for the same offense, which resulted
in a 10 day suspension on February 2, 1977, a 30 day suspension on April 21,
1977
and a 60
day suspension on September 21, 1978.
In our review of this case, we concur with Carrier's position. The basic
issue before this Board is the proper application of Rule 22, which is verbatively
quoted hereinafter:
"Rule 22 - Absent From Work
An employee unavoidably detained from work on account of
illness or for other good and sufficient cause shall notify
his foreman not later than the close of the first days of
absence, if possible."
In previous awards of this Division, involving the same rule and the same
Carrier, we pointedly stated that Rule 22 was not intended to condone or excuse
excessive absenteeism. By themselves, the dates of absence delineated in the
March 20, 1979 notice of investigation might be protected, if Claimant lied
complied with the notification procedure of Rule 22, but when his prior disciplinary record for excessive absenteeism is considered within the context of
our judicial holdings, we cannot conclude that Rule 22 condones his absences.
In Second Division
Awes
771+8, which we find controlling herein, we stated in
pertinent part that:
"In addition, it would be a misreading of Rule 22 to use it in
defense of the employe's actions in the present case. The
provisions of Rule 22, whatever other purposes they may serve,
are not a defense against chronic absen teeism.
As
held many
times before the Board, the employer hbs a right to expect
regularity in attendance."
There axe no mitigating factors in this dispute to modify this general
principle. We upheld this position in Second Division Award 7803, wherein we
stated:
"As explained in Award 77+8 and numerous previous swards, Rule
22 has specified purposes requiring absence reporting bmt does
not by itself, serve to condone absenteeism ... aggravated in
this instance aver a period of at least nine months. Vurtlier,
Rule 22 refers to 'good and sufficient causes' which were not
found in this instance."
Claimant had been progressively disciplined on three prior occasions for
the same offense. He was again excessively absent on the aforementioned dates.
To argue that the latter absences were protected under Rule 22, in view of our
previous holdings, vitiates the principle of stare decisis and renders the
precedential value of our awards meaningless. We recognize, of course, that
Claimant was experiencing personal- problems, but this does not excuse his
recent absences, when his discipline record for absenteeism is thoughtfully
weighed. We will deny the claim.
Form 1
Page
3
A W A R
D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By
.osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 27th day of January,
1982.
Award No.
8881
Docket No.
8757
2-CR-MA-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
,owe