Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9207
SECOND DIVISION Docket No. 8888
2-CR-FO-182
The Second Division consisted of the regular members and in
addition Referee George V. Boyle when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer S. 0. Henderson wars
unjustly dismissed from service of the Carrier following trial held on
June
6,
1979.
2. That, accordingly, the Carrier be ordered to make the aforementioned
S. 0. Henderson whole by restoring him to Carrier's service, with
seniority rights unimpaired, made whole for all vacation rights, holidays,
sick leave benefits, and all other benefits that are a condition of
employment unimpaired, and compensated for all lost time plus ten (10%
percent interest annually on all lost wages, also reimbursement for all
losses sustained account of coverage under health and welfare and life
insurance agreements during the time he has been held out of service.
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.
The claimant was employed as a laborer by the carrier on January 22, 1979
and assigned duties at the Avon Diesel Terminal, Avon, Indiana.
On June 8, 1979, after a proper trial, he was dismissed on a charge of
"Absenteeism", citing absences on: April 18, Ig, 21, 24, 25, 26, 27, 28; May 1, 2,
3,
4, 10, 11, 12, 15, 16, 17, 18, 19, 22, 1979.
The employee organization bases its appeal from this decision on the
following grounds:
A) That the claimant was not given proper and sufficient warning advising
him of his poor attendance record. It is alleged that, "It is a
policy
at Avon Diesel Terminal to advise an employe with three written warnings
before the carrier could have a trial on an employee'.
F orm 1
Page 2
Award No. 9207
Docket No. 8888
2-CR-FO-'82
B) That this was the claimant's first offense and therefore he should be
allowed a second chance with which to redeem himself. Further it is
asserted that the claimant has learned his lesson and has and will
correct his work habits.
That the punishment meted out was excessive and unwarranted.
Dealing with these points seriatum:
It is a principle well established, of long standing aryl well understood by
the parties that the Board may not go beyond the issues raised on the property
during the handling of the dispute. In this case the question of proper and
sufficient notice was never raised during the investigation or trial. It first
surfaced on the record June 29, 1978 during appeal. Thus, without ruling or
speculating on the validity of the alleged policy or
its application herein the
Board must exclude this issue from consideration.
With respect to the question of leniency because the claimant was dismissed
on a first offense and should be allowed another opportunity unfortunately the
offense was not an isolated occurrence but of a continuing nature and so egregious
that such appeal deserves scant merit. The claimant was absent one third of his
scheduled working time, thirty (30) out of ninety (90) days, and worked only part
of nine
(9)
additional days. Moreover even after notification on May 24 of the
impending action to be taken against him the claimant's record of absences and
latenesses entered in evidence at the trial, reveals that he was in violation on
seven (7) out of eight
(8)
subsequent scheduled days. This record should also
refute the assertion that the claimant has learned his lesson and has corrected
his working habits.
Based upon such a record the dismissal of claimant was certainly warranted
and not excessive punishment especially since unrefuted and unchallenged testimony
characterized the absences to be unexplained, unrequested and without notification.
Moreover the claimant did not give assistance to the representative who conducted
his defense and did not attend his trial or appeal. While the carrier's conclusion
that this latter action is an admission of guilt is not necessarily valid, certainly
his indifference to the outcome is indicative of past attitude and future prospects
of reform.
Excessive absenteeism is a serious offense worthy of dismissal and such action
is proper and fitting in this case.
a
A W A R D
Claim denied.
Attest: Acting Executive Secretary
ational Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
`Rsemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of July, 1982.