Form 1 NATIMAL
RAILROAD
ADJUSTMENT BOARD Award No.
9378
SECOND
DIVISION Docket No.
9333
2-NSaa-CM-'
83
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: ~ and Canada
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the controlling
Agreement when it unjustly assessed Carman R. A. Keim a fifteen (I5)
days actual suspension on January
29, 1980,
and reaffirmed by the carrier
on April 10,
1980,
as a result of investigation held on February 11,
1980,
at Brewster, Ohio.
2. That the Norfolk and Western Railway Company be ordered to compensate
Carman R. A. Kelm for all time lost as a result of discipline assessed
on January
29, 1980,
that Carman R. A. Keim be made whole for all
seniority and vacation rights, and all other rights and benefits provided
under the controlling Agreement that he would. have received during the
period he was unjustly detained from work.
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 thereo
Under Rule 13 d of the controlling Agreement Claimant, Mr. R. A. Keim,
requested on February,
1980
through the Local Chairman of the Organization that
a hearing be held to determine the appropriateness of a fifteen
(15)
day actual
suspension from service which he had received on January
29, 1980
for alleged
excessive absenteeism. The fifteen (15) day actual suspension was the result of
a five
(5)
day actual suspension which Claimant received on the above date which
activated an earlier ten (10) day deferred suspension which he had received on
October 22,
1979
for a poor attendance record. A formal hearing on property was
held an February 11, , 1980
.
Rule I3(d) reads, in pertinent part:
"An employee who has been in service more than thirty (30)
days ,.. and
is
dismissed, suspended or otherwise
reprimanded, will be apprised of the precise charge against
him and shall have a fair and impartial hearing, provided
Form 1 Award No.
9378
Page
2
Docket No.
9333
2
-Naaa-crs-'
83
written request is presented by the man affected or by
his authorized representatives to the official who
dismissed, suspended or reprimanded him, within ten (10)
days of the taking of such disciplinary action. The em
ployee will be given a reasonable opportunity to secure the
presence of necessary witnesses for the hearing. If it is
found that an employee has been unjustly suspended or
dismissed from the service, such employee shall be reinstated
with his seniority rights unimpaired and compensated for his
net wage loss, if any, resulting from said suspension or
dismissal. Appeals, if taken, shall be in accordance with
Paragraph (A) of this Rule
13."
As a result of the hearing the discipline which had been assessed was upheld
by the Carrier. It is a point of some importance to this case that Claimant
was not assessed the discipline because he was in violation of Rule 10 a of
the controlling Agreement, but because he had engaged in what Carrier termed
"excessive absenteeism". For the record, Rule 10 a reads as follows:
"Wizen an employee wishes to be absent from duty he must
obtain permission from his foreman. If detained from work
on account of illness or for any other good cause he shall
notify his foreman as promptly as possible. If he fails to
do so, it will be considered sufficient cause to drop his name
from the payrolls and seniority rosters. An employee off
duty must notify his foreman when he expects to return to
work in sufficient time to permit release of relief man
working in his place. Failure to so notify the foreman
shall void claim for time due because of reporting and not
being used on day of reporting."
A review of the record by the Board leads it to conclude that the Claimant
did, indeed, engage in absenteeism which is far above the normal required if a
Carrier is to function productively and efficiently. From October
22, 1979
through January
29, 1980
Claimant was absent in excess of 26% of the time.
Excessive absenteeism, which may be defined in principle as that point, because
of absences, when an employee becomes a liability rather than an asset to a
Carrier, has not been sustained by prior Awards of this Board (Second Division
6710, 731+8
and
9158
inter olio) and the instant record shows that the Claimant
did not pass a reasonable test of the principle noted above. The Board stands on
precedent, therefore, when dealing with matters such as these as laid out in
Second Division Award
59+9
which has parallel application here and which states
the following:
"Nothing in the Agreement obligates the carrier to attempt to
operate its railroad with employees repeatedly unable or
unwilling to work the regular and ordinarily accepted shifts,
whatever reason or excuse exists for each absence, and even
without the complication of work for other employers. His
practice, if permissible for him, is permissible for all
employees."
Form 1
Page
3
Award
No. 9378
Docket
No. 9333
2-N&W-CM-X83
The Board finds no grounds to hold that the investigation was not held in
a fair and impartial manner. The use of tape recorders at a hearing, when it is
ascertained that it does not violate any provision of the controlling Agreement,
has been upheld in prior Board Awards (Second Division
8451;
Third Division
1585i0).
Nor does the Board have reason to reverse Carrier action on the grounds that the,
discipline was excessive. The Claimant had been forewarned prior to January
29,
1980
that his attendance record needed improvement. Sufficient substantial
evidence is present to deny the claim.
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
~emarie Brasch - Administrative Assistant
Dated ~t Chicago, Illinois, this
2nd
day of February,
1983.