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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9364
SECOND DIVISION Docket No. 9305
2-CMStP&P-EW-'8;j
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: ~ Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
violated the current agreement when it unjustly dismissed Electrician
Lucas Torres, Jr. from service on June 11, 1980 for alleged failure
to protect his assignment.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to make Electrician Lucas Tomes, Jr. whole by reinstating
him to service with all seniority and other rights unimpaired and
compensating him for all lost wages and clearing his record.
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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant entered the employ of Carrier as an Electrician as August 25,
1979
and, at the inception of this dispute, was working in that position at
the Carrier's Diesel House in Bensenville, Illinois. On May I6,~980, the
Carrier sent Claimant a letter notifying him to report for forma investigation.
on May
23, 1980.
As s result of the investigation held on May
23,
Claimant was dismissed
effective June lI, 1980. He was in service for approximately eleven months.
The Organization has taken the position that the claim should be sustained,
inasmuch as the decision was arbitrary, capricious, the Claimant was innocent
of the charges and the Carrier failed to meet its burden of proof. It specifically
argues that the record evidence reveals that the Claimant was absent for good
cause, that since he was unavoidably kept from work based on an ankle injury,
which he proved with a physician's statement, from April 2 throi-April 11,
1980; and because of a motorcycle accident from April 19 through April 23, 1980.
Form 1 Award No. 9364
Page 2 Docket No.
9305
2-CrrstP&P-Ew-'83
According to the Organization, Rule 16 states in pertinent part:
"An employs detained from work an account of sickness or for
any other good cause, shall notify his foreman as soon as
possible."
The Organization takes the position that Claimant did in fact notify the Carrier
as early as possible about his injuries and absences from work. Since the
Claimant was unavoidably kept from work, and complied with Rule 16 of the
Agreement by notifying Carrier of his injury and absence as soon as possible,
Claimant has been unjustly disciplined.
The Carrier submits that the Claimant was properly notified of the matter
with which he was charged; he was given a fair and impartial hearing as provided
for under the current rules agreement; the testimony given at the hearing
supports the charges that were preferred against the Claimant. In taking into
consideration the seriousness of the proven charges, as well as the Claimant's
unsatisfactory past record of absenteeism and tardiness for which he had bees
warned and the fact that the Claimant had been in Carrier's service but a short
time (eleven months), the disciplinary action taken was warranted and justified.
Upon a thorough examination of the record, the Board concludes the Claimant.
received a fair and impartial investigation in strict accord with Rule
35s
the
applicable discipline rule contained in the Controlling Agreement. Claimant
admits to not protecting his job assignment on the dates involved and that he
only called in on two of those dates, i.e. April 2 and 21,
1980.
On eight of the
above dates that Claimant was charged with being absent from his job
assignment,
i.e. April
3, 5, 6, 9, 11, 19,
20 and 23, he did not notify his foreman that he
would be absent.
In connection with the charge of tardiness, the record evidence reveals
that on April 16, Claimant called in that he would be two and am-half hours
late but gave no reason for his delay and on April 18, Claimant was thirty
minutes late and did not call in and gave no reason for the delay.
The Board finds the summarized evidence overwhelmingly substantial with
regard to Claimant's excessive days of absenteeism without valid reason and
with regard to Claimant's non-compliance with Rule 16 of the controlling
agreement. Numerous prior swards of this Board have set forth the principle
that absenteeism is serious and that excessive and habitual failure to report to
an assignment is sufficient grounds for dismissal. (For example see Second
Division Awards 738, 8216, 8523, 8238 and 8546.) The Carrier can hardly maintain
normal operations unless its employee regularly report to work. Second Division_
Award
7870
(Roukis).
In applying these principles to this case, the Board finds on the merits
that the Carrier's findings are based upon substantial and credible evidence.
The record reflects Claimant was afforded two opportunities in his short work
tenure to improve his absentee record, but to no avail. We cannot find that
any procedural or substantive rights of the Claimant were violated. Therefore,
we will deny the claim.
Form I
Page
3
Claim denied.
A W A R D
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No. 9364
Docket No.
9305
2-CMStP&P-EW-`83
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Bs rie Brasch - Administrative Assistant
Dated ai Chicago, Illinois, this 26th dap of January, 1983.