Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9042
SECOND DIVISION Docket No.
9111
2-SPT-EW-'82
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
R. L. Brown was unjustly treated when he was dismissed from service
on July
5; 1979
following investigation for alleged violation of
portion of Rule 810 of the General Rules and Regulations of the Southern
Pacific Transportation Company (Pacific Lines). Said alleged violation
occurring from May
30,
to June
7, 1979.
2.
That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Restore Electrician R. L. Brown to service with all rights
unimpaired including service and seniority, loss of wages,
vacation, payment of hospital and medical insurance, group
disability insurance, railroad retirement contributions, and loss
of wages to include interest at the rate of six percent (6%0) per
annum.
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, 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, Mr. Brown, was notified by letter June
7, 1979
to appear for an
investigation on June
22, 1979.
He was charged with being absent from duty.
There was no acknowledgement of receipt received by the Carrier. Accordingly,
a second notice was mailed on June
21, 1979,
rescheduling the hearing for June
29, 1979.
A copy of the original notice accompanied the new notice. Claimant
signed the post office receipt acknowledging the second letter.
The investigation was held as scheduled in the second notice. Mr. Brown
did not appear at the hearing but was represented by his Organization. We find
that the hearing was conducted in accordance with coetual requirements and
past practice. Following that investigation the penalty herein complained of
was assessed.
F orm 1
Page
2
Award No.
9
Docket No.
9111
2-L8dQ-EW-'
82
The Organization raises the defense that the hearing was not fair and
impartial as required by contract. In so doing, it points out that Mr. Brown
was not present to confront his accusers. Claimant signed for receipt of the
second notice of hearing four days before it convened. There is nothing in the
record to indicate that anyone heard from him. Petitioner cannot frustrate the
process by simply staying away from an investigation. He was properly notified
and was represented by his Organization.
In assessing penalty the Carrier charged Mr. Brown with violation of a
portion of Rule 810 which reads:
"Employees must report for duty at the prescribed time and
place, remain at their post of duty, and devote themselves
exclusively to their duties during their tour of duty.
They must not absent themselves from their employment
without proper authority ...
Continued failure by employees to protect their employment
shall be sufficient cause for dismissal."
The record is clear. At the time the notice was mailed Mr. Brown had been
absent from work from May
30, 1979
to June
7, 1979.
He had not been excused
nor was any reason given for his absence. He was still absent without permission
at the time of the hearing, although the Carrier testified he had been contacted
and warned that discipline might be imposed. Such action constitutes a violation
of the rule as charged.
Based on the foregoing and the entire record, this Board has no alternative
but to uphold the decision of the Carrier.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY
Rosemarie Brasch - Administrative Assistant
D ted at Chicago, Illinois, this 21st day of April,
1982.