C:\AWARDS\OUT\2-09375.htm

Form 1 NATIONAL RAILROAD ADJUSTlENT BOARD Award No. 9375

SECOND DIVISION Docket No. 9308

2-BN-EW-183

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:

( Burlington Northern Railroad Company (former SLSF)

Dispute: Claim of Employes:

1. That in violation of the current Agreement, Mr. E. E. Mayer, Electrician,

Burlington Northern Inc., (former St. Louis-San Francisco Ry. Co.)

was unjustly suspended from Carrier service from December 19, 1979 and

continuing through January 1,

1980.

2. That in further violation of the Agreement, the Burlington Northern Inc.,

failed to afford Claimant a fair and impartial hearing and thus stand:;

procedurally defective in this claim.

That accordingly, the Burlington Northern Inc., be ordered to make the:

aforementioned E. E, Mayer whole by compensating him for all time lost:

account this unjust suspension, this to include pay for attending the

investigation (December 11, 1979) holiday pay for dates of December 24,

and 25, 1979 and January I, 1980. Claim also to include restoration

of all seniority rights, vacation time, health and welfare benefits,

pass privileges and all other rights, benefits or privileges that he

. is entitled to under rules, agreements, custom or law and the record

of the unjust suspension be removed from the 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 Lobar 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.

This matter involves an absence on December

1979, for which the Claimant: was found at fault by reason of not securing permission, thereby failing to protect his assignment. A fourteen

(14)

day suspension was issued following investigation on December 11, 1979·

The basic facts of the December 3, 1979 incident are not in dispute. Claimant had been warned on several prior occasions by supervisors concerning his attendance problems. Based on the facts developed at the investigation, there could be no doubt that Claimant did not report for duty as required at

Form I Award No. 9375
Page 2 Docket No. 9308
2-BN-EW-183

7:3C a.m. on December 3, 1979, and Claimant admits that he did not notify any carrier officer that he would be absent until sometime after 1:00 p.m. an the date of the incident when he personally arrived at work. According to the testimony of the foreman, Claimant never received permission to lay off on that date. It is the position of the Organization that Claimant had been out of town aver the weekend, encountered car trouble, got in at 5:00 a.m. Monday morning and slept through his alarm. Therefore, the Organization argues that these reasons fall into the category of "unexpected instances" and that Claimant complied with the requirements of Rule 22 of the Controlling Agreement when he did come into work to explain what happened "as soon as possible". The Organization raised three procedural issues in support of its argument that Claimant was denied a fair and impartial investigation, to wit:

(1) that the carrier officer who preferred the charges also assessed the penalty and heard the appeal, and the multiplicity of roles constituted a denial of a fair hearing;

(2) the hearing officer prejudged the case as evidenced by a letter sent to Claimant by~the hearing officer one day prior to the notice of investigation and concerning Claimant's attendance problems; and

(3) the notice to appear for investigation was not a precise charge as required by the terms of Rule

of the Controlling Agreement.

None of these contentions are in our judgment meritorious in this case, since all three procedural contentions were raised de navo before our Board but never joined on the property. On the merits, the Board is satisfied that the Claimant was at fault by reason of not securing permission and the excuse offered by Claimant was not goad cause for being absent from work. Numerous prior awards of this Board have set forth the principle that absence because of oversleeping or the excuse of sleeping through the alarm were not justifiable reasons for failing to protect assignment. (See Second Division Awards 4165, 7067 and 8+11). As noted by Referee Daly "the oversleeping excuse also fails to support the Claimant's position, because neither the alarm clock's nor the Claimant's failures could be placed in the 'good cause' category ...". Likewise, under the circumstances of the instant matter, nothing in the record leads this Board to the conclusion that discipline assessed was arbitrary, capricious, discriminatory or excessive.

A W A R D

Claim denied. Form 1 Page 3 Attest: Acting Executive Secretary National Railroad Adjustment Board By. Award No. 9375 Docket No. 9308 2-BN-EW-183 NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Brie Brasch - Admini- ive Assistant Dated atlChicago, Illinois, this 2nd day of February, 1983.