Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9214
SECOND DIVISION Docket No. 8917
2-CMStP&P-CM-'82
The Second Division consisted of the regular members and in
addition Referee George V. Boyle when award was rendered.,
( Brotherhood Railway Cayman of the United States
Parties to Dispute: ( and Canada
(
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company did
unjustly dismiss Cayman Robert W. Partee from the service of the
railroad on June
15, 1979
as result of hearing held on May
16, 1979·
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to restore Cayman Robert W. Partee to service with seniority
rights unimpaired.
3.
That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to make Cayman Robert W. Partee whole for all rights and benefits
that are a condition of employment such as, but not limited to, seniority,
vacation, holidays, medical, surgical, dental and life insurance benefits
during such time as he is held out of service.
+. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to compensate Cayman Robert W. Partee for all lost time as
result of his unjust dismissal from the service of the Carrier.
5.
That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to award Cayman Robert W. Partee interest at the
6%
rate per
anntm for any and all payment he may receive as result of this claim.
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 over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The claimant was employed as a carman welder at the Milwaukee, Wisconsin
Freight Shop for a period of approximately nine (9) months. A hearing was held
on May
16, 1979
to investigate the charges of failing to protect assignment and
failure to report to work on time. Following the hearing the claimant was
terminated on June
15, 1979·
Form 1 Award No. 9214
Page 2 Docket No.
8917
2-CMStP&P-CM-182
'Ago
The Employers Organization asserts that he was denied a fair and proper
hearing since the claimant was not present at the hearing and a requested postponement until such time as he could be present was denied. It is alleged,
moreover, that he did not receive adequate notice of the hearing.
Further the Employes assert that the claimant had a legitimate excuse,
psychotherapy, for absences on two (2) dates and might have justified other
absences and/or latenesses had he been present to testify. Also it is asserted
that the discipline meted out is punishment rather than correction.
In reviewing the entire transcript and supporting documents the Board notes
that the instant case is not the first time the claimant has had a hearing relative
to excessive absenteeism and lateness. In fact, only two months earlier he had
been warned and counseled at a hearing for the same offenses.
In this instance he had been notified by certified mail of the hearing by
letter of May
4.
Also he had been handed, in person, a letter on the property
by his Foreman on May 10. While a certified letter might have gone astray as the
claimant asserts, the same cannot be said of a letter delivered into his hands.
Thus he had a minimum of six
(6)
days within which to prepare for his hearing, to
personally request a postponement or to contact his representative to arrange a
later hearing. He did none of these and absented himself from the hearing.
His absence-does not preclude conducting a proper hearing, as has been well
established by the Board in numerous cases of which the following are cited:
Third Division, Award No.
13941:
"There must be a termination to an adversary proceeding and
the parties bear the responsibility of protection of their
respective interests. The situation herein presented is
analogous to a party failing to appear at a trial in a civil
action set for a day certain, whereupon the court enters
judgement on the pleadings or ex parte evidence. We find,
in light of the facts of record, Carrier did not violate
the Agreement in proceeding to decision in the absence of
Claimant."
Third Division Award No. 22.08:
"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."
Second Division Award No.
5987:
"When claimant failed to appear at the hearing
...,
after
having been properly served with notice, he acted at his
peril; and Carrier's proceeding with the hearing in his
absence was not a denial of due process."
Form 1
Page
3
Award No. 9214
Docket No.
8917
2-CMS
t P&P- CM-'
82
The Board in this case reaffirms the above awards.
With respect to reasons for his latenesses and absenteeism, testimony at
the hearing referred to a document read into the record which the claimant had
delivered to the Carrier on May 10. It states:
"To Whom it may concern.
I have examined Mr. Robert Partee on
4/25/7g
and again on
May
10, 1979.
There are no mental health problems which
would prevent him from carrying out his responsibilities as
a welder at this time.
Signed, Paul K. Wehmeier
Psychotherapist"
Thus whatever problems, if any, the claimant experienced they were not
mental problems. Further the therapist said he had "examined" the claimant, not
treated him; therefore "psychotherapy" was not a legitimate excuse for his absence
at the hearing and there is no evidence that it is related to his work record.
This employe's work record is strewn with frequent absences and latenesses.
For such a short term employe the Carrier has a right to expect a far more serious
effort to protect his assignment and to report for work on time. Having been
warned and counseled prior to his most recent dereliction the discipline assessed
is right and proper and his claim is without merit.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOAS
By Order of Second Division
By
J,..£tosernarie Brasch - Administrative Assistant
FDated at Chicago, Illinois, this 22nd day of July, 1982.