Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8902
SECOND DIVISION Docket No.
88+5
2-CR-MA-182
The Second Division consisted of the regular members and in
addition Referee Elliott M. Abramson when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employee:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
Kevin L. Adams 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 Keven L. Adams be c*npensated 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:
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, 193+.
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 for excessive absenteeism pwrsuant to a notice of
May
8, 1979.
On April
9, 1979,
in a notice, the delivery of which was receipted
for by Claimant, the latter was charged with excessive absenteeism regarding
the period February
14
- April
2, 1979.
Claimant was charged with
8
absences,
8 latenesses and
3
"out-earlys" during this period. On April
25, 1979,
in $
notice, the delivery of which was receipted for by Claimant, he was charged,
respecting y=mpnth of April,
1979,
up to that point, with being absent on
8
occasions, late once, and with having left early once. When the two charges
are combined Claimant was charged with being absent on 16 dates and either having;
been late or having left early 13 times. (At least some of the absences charged
allegedly occurred subsequent to Claimant having received the first of the two
charges of excessive absenteeism above detailed.)
The trial relating to the first set of charges, originally scheduled for
April 23,
1979,
was postponed, to May
2, 1979,
due to the Claimant not having
made himself available for trial on April
23, 1975·
A further postponement was
granted on May
2, 1979
due, apparently, to the Claimant's Organization representstive having a conflicting responsibility on that date. (In any event, Claimant
Form 1 Award No.
8902
Page 2 Docket No. 8845
2-CR-MA-'82
was again apparently unavailable on this date.) On
may 4, 1979
investigative
hearings respecting both sets of charges mentioned above were held. Claimant
was not present at these hearings, with both Carrier and Organization representatives
apparently unable to ascertain his whereabouts. The May 8th notice of dismissal
was issued pursuant to the results of these hearings.
At one of the hearings a Foreman testified that on many occasions Claimant
had left work early without an excuse and without an indication that he wished
to explain or justify such early departures in any way. The Foreman further
testified that on one occasion when the Claimant left early he said he had family
problems but on other occasions provided no real excuse, simply saying he had
to leave. This Foreman indicated that even absent adequate excuses he let
Claimant leave since it would not have been. appropriate to attempt to physically
restrain him. Documentation as to Claimant's alleged absences, latenesses and
"out-earlys" was also referred to, based on Department time-books.
The Organization contends the investigative trials were not fair and
impartial since a request for their postponement, because of Claimant's absence
from them, was;denied. It asserts that Claimant was not present to defend
himself and that Carrier knew that he could not be present since Claimant was
marked off as ill at his place of work on that day. The Organization contended
that it could not properly represent Claimant, since its representatives had not
been able to contact Claimant, and that the Carrier holding two separate
investigations, back to back, on the same date, when Claimant could not be at
such hearings, represented a deliberate effort to pile
up
evidence against
Claimant at a time when he could not defend himself. The Organization asserts a
further procedural impropriety in that the notice of dismissal sent to Claimant
did not specify whether the dismissal was based on the investigative hearing
relating to the first set of charges or respecting the one pertaining to the
second set of charges.
In the first place, it must be remarked that at the investigative hearings
themselves no actual evidence was presented that claimant had advised anyone that
he was sick or that he was, in fact, ill and, therefore, unable to attend the
trials. There was simply an allusion to the fact that he was marked off sick,
at his place of work, on the date of the hearings. But such notation is not
conclusive respecting his actual state of health or the date in question; it
may merely have been one in a series of perfunctory entries made to indicate
Claimant's absences from work. In any event, no concrete evidence whatsoever
of Claimant's being ill on
may 4, 1979
was presented.
The basic pattern here is that of a claimant charged and advised to appear
at an investigative hearing, respecting such charge, the hearing being postponed
several times because of the Claimant being absent on the originally scheduled
dates (also, on one of such dates Claimant's representative had a conflicting
obligation) and the Claimant's representatives requesting yet a third postponement, on the date the hearing was actually held, because Claimant was again not
present. All the while claimant was apparently completely unavailable, with his
whereabouts ascertainable by neither Organization nor Carrier representatives.
In such a context it is well established that Claimant may not frustrate the
holding of investigative hearings, respecting his alleged improper conduct, by
Form 1 Award No.
89C,e
Page
3
Docket No.
88+5
2-CR-MA-'82
simply continuing to fail to appear at repeatedly rescheduled hearings and being
unavailable to communicate with Organisation or Carrier representatives wlio
might seek to get Claimant to commit himself as to exactly when he would 1>e able
to attend an investigative hearing. This must especially represent the Board's
feeling when no tangible evidence, whatsoever, as to why Claimant has failed to
attend scheduled hearing is presented.
To this effect is Award No.
22+08,
Third Division, which stated:
"An employee cannot prevent the holding of a fair and
impartial hearing by the simple expedient of staying
away after due notice has been made without proof that
the absence was justified."
Similarly, Award No.
781-,
Second Division, found:
"Although notified, Claimant failed to attend the hearing.
We find that Carrier properly conducted the hearing in this
case and that Claimant's failure too attend his own hearing
was done at his own peril."
The point is enunciated extsenely decisively in Award No.
8225,
Second
Division:
".., we find nothing improper with regard to Carrier having
conducted the investigation with Claimant in absentia.
Claimant was given proper notification of the hearing as
to the date, time, and place and was advised of his rights
regarding witnesses and r:presentation. For whatever
reasons, Claimant chose nit to attend the hearing nor to
advise either the Organization cr the Carrier in advance
of the scheduled hearing ,late that he would be unable to
attend. We believe, therefore, the Claimant received a
fair and impartial investigation."
In Award No.
7857,
the facts might be considered as much more favorable to
Claimant's position than they are here. For although, Claimant had requested at
hearing postponement and then had failed to attend the rescheduled hearing he
f
was represented by an Organization official who presented a physician's letter
attesting that Claimant would not b: present at the rescheduled hearing.
Nevertheless, the Board upheld the conduct of the hearing in absentia, saying:
".., the Organization was not apprised of the Claimant's
position, even though representing him at the hearing
...
The hearing was rescheduled at the Claimant's request. It
is well established that such deliberations cannot be
successfully thwarted by the disinclination of the
Claimant to appear..."
While it is true that the May eth notice of dismissal failed to state
whether Claimant's dismissal was based on the first, second or both of the
Form 1 Award No.
89C2
page 4 Docket No.
881+5
2-CR-MA-'82
hearings conducted on
may
4th, this cannot be considered prejudicing any of
Claimant's rights in these premises. The charges of excessive absenteeism
pertaining to either of the two hearings could be considered warranting the
discipline Carrier here assessed Claimant. There is plentiful authority
supporting such a position. For example, in Award No.
6710,
Second Division,
it was stated:
"Every employee has an obligation and a duty to report on
time and work his scheduled hours, unless he has good and
sufficient reason to be late, to be absent, or to I,.eave
early. Those reasons must be supported by competent and
actceptable evidence. No employee may report when he likes or
choose when to work. No railroad can be efficiently operated
for long if voluntary absences are coi.doned."
In similar vein is Award No.
856+,
Second 1>ivision, which observed:
"A Carrier in general has the right to expect reasonably
regular attendance by its employees. A Carrier is not
obligated to keep in its employment an employee who cannot
effectively work more than part time
...
...
The Carrier can't be expected to tolerate such
unreliability -- excused or unexcused."
Additionally, the point was most forcefully stated in Award No.
73+8,
Second
Division where the Board commented:
"When an employee is so consistently and habitually absent
over a long period of time that his employment becomes a
serious liability rather than an asset., Carrier is
entitled to terminate his services.
An employee may be absent from his work so much of the time
as to become, in effect, a part time employee. Carrier is
entitled to insist on reasonable attendance
....
The
interests of the other employees and the Carrier must
outweigh the personal interests of Claimant.
It is obvious that if ell employees were so unfortunate
as to be unable to work for the same extent as Claimant,
the Carrier could not continue operation, and the economic
well being of all concerned would be defeated
...."
In any event, the charges of excessive absenteeism were d<cumented in both
the hearings conducted on May 4th and it may be reasonably inferred that the
dismissal letter of May 8th was based on the totality of these hearing;.
Form 1
Page
5
Award No. 8902
Docket No. 88+5
2-CR-MA-182
The appropriateness of the discipline assessed by Carrier, while as
indicated, strongly upheld, by past authority, simply on the basis of the may 4th
hearing, seems especially warranted in view of Claimant's past record relating
to excessive absenteeism and lateness. In the past, Claimant had incurred
1) a seven day suspension for being absent from assignment for 10 days and either
in late or out early on another 10 days; 2) a seven day suspension regarding
being absent from his assignment for seven days; 3) a thirty day suspension four
being absent from his assignment on 33 days and coming in late or leaving earl;
on another 11 days.
The Carrier points out that it was hoped such discipline would have had a
remedial effect on Claimant's work performance but that it apparently failed to
achieve such purpose. This seems a sound conclusion in the context of the facets
here outlined and thus particularly in view of Claimant's most spotty record
on excessive absenteeism, in the past, the discipline here assessed was well
founded and proper.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
/ 5~--'L/ `
:marie Brasch - Administrative Assistant
Dated It Chicago, Illinois, this 10th day of February, 1982.