Form 1 NAT I ONAL 1tAILROAD ADJUSTMENT BOARD Award No. 8918
 SECOND DIVISION Docket No. 8718
 2-WFE-CM-'82
 The Second Division consisted of the regular members and in
 addition Referee John J. Mikrut, Jr. when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 Parties to Dispute: ( and Canada


Dispute: Claim of Employes:




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, 193+.

 This Division of the Adjustment Board has jurisdiction aver the dispute involved herein.

Claimant, a Cayman at Carrier's Cicero, Illinois facility with approximately 9 years of seniority, was charged with "... failure to protect your regular assigned position on October 24, 25, 26 and 27, 1978"_ Pursuant: to an investigation which was conducted on November 3, 178, Claimant was adjudged guilty as charged and was terminated from Carrier's service effective November 13, 1978.

 Claimant alleges that while at work on October 23, 1978, he informed his immediate supervisors) that he was not feeling well. In the record Claimant proffers two (2) somewhat different versions of this purported statement. These are: "I told Mr. Estrada on the 23rd that I was not feeling well. and that if I felt the same on the 24th that I would go to see a doctor"; and (2) "I notified General Foreman, J. '. Estrada, and Supervisor, H. Beagle on October 23rd that I was ill. aged that I would not be in". Carrier Supervisors) contend, however, that Claimant did not make any such statement. Despite these discrepancies, the record shows that Claimant was absent from work on October 24, 25, 26 and 27, 1978, and that at no time during that period did he contact Carrier to report his continuing absence. Regarding this matter, however, Claimant maintains that he did attempt to contact the supervisors but that every time he called on the telephone, "_.. either there was no answer or the line was busy".

~~'~:~rm ~. Award No. 8918 -
 ;'age 2 Docket No. 8718
 2-WFE-CM-'82

 On October 27, 1978, Claimant was notified by Carrier to appear for an investigation on November 3, 1978; and on October 31, 1978, Claimant secured a statement from Dr. Jose N. Munoz stating that Claimant:

Organization contends that Claimant was not proven guilty of the charges which were raised against him and that Carrier's subsequent termination of Claimant was arbitrary and capricious, and thus in violation of Rule 27 of the controlling agreement. In support of this position Organization maintains that Claimant complied with Rule 18 in that: (1) he did notify ht; supervisor(s) on October 23rd that he was not feeling well and that if he felt the same on the next day that he would ljo to see a doctor; (2) supervisors did not deny that the disputed conversation could have taken place; (3) Claimant was ill can October 24--30; and (4) he did go to a doctor and received a doctor's statement verifying his condition on October 31. Further elaborating on this particular aspect of the case, Organization next argues that "Rule 18 ... does not require an employee to call in each and every day that he is absent ..." and that °'(F)or more than forty years, it has been an established practice that wh en employees were off sick for more than one day's duration, they would notify the foreman or Carrier's office as early as possible, and upon their return to work, furnish a statement from the doctor treating the employee".

 As for Carrier's allegation that the instant claim is barred under Rule 26-A because "Organization did not advise Director-Operations C. W. McCollister of the rejection of his decision of February 26, 1979", organization contends that the June 7, 1979, letter from L. K. Hall, Assistant to the Vice President, denied the claim only on its merits and, therefore, Carrier waived the alleged procedural argument (Third Division Award 1101+x+).

 From the outset Carrier contends that Organization's representatives failed to reject any decisions made by Carrier's representatives in this dispute within the 50-day time limit, and that under Rule 26-A(b) of the Agreement the claim is considered closed and barred from further handling (Second Division Award 6+71).

 In addition to the foregoing Carrier maintains that Claimant's investigatory hearing was fair and in compliance with Rule 27; and further that, given the facts of this case, Carrier's action herein was not arbitrary or capricious. For these reasons, along with Carrier's sight to resolve credibility conflicts against Clan1mant, Carrier asserts that Claimant's discharge should remain undisturbed.

 As its next series of arguments Carrier asserts that "(E)ven Cf the Claimant had, contrary to the weight of the evidence, informed the supervisors that he would
 be absent on October 24, 1978, that would not have relieved him of the ot)ligation -
 to call a supervisor on the subsequent days of absence". In this context Carrier
 maintains that there is nothing in the Agreement which supports Organization's
 contention that an absent employee need not report off every day; and Claimant's
 Form 1 Award No. 8918
 page 3 Docket No. 8718
 2-WFE -CM-'82

 reluctance to dixedtl;. respond to Carrier representatives questions regarding this point clearly supports this position (Second Division Award 71+2 and Third Division Award 19558. Further carrier maintains that Claimant's production of the doctor's statement which allegedly accounts for his absence on October 24-30,, 1978, is inconsequential since said document "does not address the Claimant's principal wrongdoing, his failure to notify the Company in advance and/or during the period of his absence."

 The last significant area of argumentation proffered by Carrier regarding the merits portion of this matter is that the penalty which has been assessed herein is neither excessive or unreasonable because "(U)nexcused ot:aence from work ie a serious offense and the Board has held repeatedly that dismissal is proper discipline in cases of absenteeism, partLcularly where, as here, there is a past record of such offenses" (Second Division Award 7308, 7769 and 7852).

 The Board has carefully read and studied the complete record in this disput,:: and is of the opinion that whiff Carrier validly argues that the instant claim was not rejected by Organization when the issue was handled on the property, the fact remains that both parties were some:=chat remiss regarding various procedural requirements which were prescribe. in the 1;ule s, and were considerably less than consistent in articulating their procedural objections once having raised such an argument. Because of this "duality of responsibility" and the parties' obvious failures in this regard, the Board concludes that any further consideration of any of the procedural issues would be indeterminative.
fashion as concluded hereinabove, is of the opinion that there was also a
 "duality of responsibility°" which existed on the part of Claimant and his
 supervisors) in this portion of the dispute as well. It is quite clear from
 an examination of the record that Carrier completely neglected to consider this
 factor when reviewing the evidence and assessing the penalty; and because of this,
 the Board is led to conclude that Carrier acted arbitrarily and capriciously in
 the imposition thereof.. While it is true that Claimant's initial statement to
 his supervisors) merely served to put Carrier on alert as to what action might
 occur on the next day if Claimant continued to be sick, Clatnilt!$'s statement
 was not "so far from the mark" that its true intent was obscured from the
 supervisor;. Most assuredly, one or two simple brief questions or instructions
 directed to Claimant by the super- visors would have: (1) apprised Claimant of we.at
 was expected of him; and (2) would have helped in clarifying what it was that
 Claimant was attempting to sir:. More importantly, in the context cf this dispute,
 such questions or instructions wo°t1d have been in order under any circumstances
 because neither Rule 18 nor General Foreman Estrada's explanatory letter of
 September 30, 1()77, alone or in ccrmbination, can be interpreted to contain the
 specific details of an employee's call-in responsibility such as Carrier has
 argued herein.

 Lastly, the Board has taken cognizance of Carrier's arguments regarding Claimant's past attendance record, and suffice It to say that though said record is not enviable, it is not so wanting or repugnant so as to preclude granting Claimant one final chance to prove that he can be a valued and responsible employee in. service to Carrier. For these reasons the Board will direct that
 Form 1 Page

Award No. $918

Docket No. 8718

2-WFE-CM-182

 Claimant be reinstated to his previous position with normal restoration of full rights and benefits, but without back pay.

 A W A R D

 Claim sustained to the extent indicated above.

NATIONAL RAILROAD ADJUSTNENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By l,./ ~semarie 13rasch - Administrative Assistant

 Dated at Chicago, Illinois, this 17th day of February, 1982.