i
Form 1
NATIONAL RAILROAD ADJUSTMENT
BOARD Award
No,
9398
SECOND DIVISION Docket No.
8962
2-IHB-FO-'83
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered,
( ?nternatirn al Brotherhood of Firemen and Oilers
Parties to Dispute:
( Indiana Harbor Belt Railroad Company
Disputes Claim of Employes:
1. That, in violation of the current agreement, Laborer K. Browning
was unjustly dismissed from service of the Carrier following trial held
on October 24,
1979.
2. That, accordingly, the Carrier be ordered to make the aforementioned
K. Browning whole by restoring him to Carrier's service, with seniority
rights unimpaired, made whole for all vacation rights, holidays, sick
leave benefits, andall 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 employ a 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.
Pursuant to an investigation which was conducted on October 24,
1979,
Claimant, a Laborer at Carrier's Gibson Enginehouse, Gibson, Indiana, seniority
date of February 25,
1960,
was dismissed from Carrier's service having been found
guilty of:
"Excessive absenteeism in that you have been absent the
following dates:
July 6
and 30,
1979
August
6
and
13, 1979
September 11, 12 and
14, 1979
October
8
and
g, 1g79."
Form 1 Award No. 9398
Page 2 Docket No. 8962
2-IHB-FO-183
Organization's contentions in this matter are that Claimant's dismissal was
"arbitrary, capricious and unjust action and an abuse of managerial discretion"
on the part of Carrier; and also that Claimant's October 24, 1979 investigation
hearing was not conducted in a fair and impartial manner. In support of this
position, Organization asserts that Claimant's absences were not continual or
constant, but were intermittant and, therefore, cannot be termed "excessive";
Claimant did notify Carrier of his absences on all dates charged as is required
under Rule 13; that Claimant's twenty (20) years of service to Carrier should
serve to mitigate Claimant's termination; and lastly, Carrier's reliance upon
Claimant's past record in this matter was improper because it was not related
to the specific charges which had been cited.
Carrier's position, simply stated, is that "... Claimant was afforded a fair
and impartial trial and (that) upon consideration of the evidence and his poor
prior record, no change in Carrier's assessment of discipline is warranted."
According to Carrier, regardless of the reasons for his absences, Claimant's
absenteeism was chronic and, in such situations, because of the detrimental effect
upon Carrier's ability to properly perform its operations, dismissal is an
appropriate penalty to impose (Second Divisio a Awards 62+0, 6710, 8380 and 8381).
Carrier also argues that Claimant has been warned and disciplined previously for
excessive absenteeism, and that Claimant's attendance has not improved as a
result of those corrective actions.
Upon a complete and careful consideration of the entire record~in this
matter; the Board cannot ascertain one good reason to rescind or modify Carrier's
actions which have been imposed herein. The specific charges which have been
raised against Claimant were proven with conclusive evidence. Indeed, Claimant
himself has admitted to those charges. Additionally, Claimant's attendance
record is "atrocious", and is of the type which no employer should be required
to endure. Claimant's obvious cavalier attitude regarding his responsibility as
an employe for regular attendance at work convinces the Board that Claimant's
attendance will not improve -- even if this Board were to give him the opportunity
to do so. Moreover, despite Claimant's long length of service to Carrier, given
Claimant's extensive disciplinary record involving similar incidents during the
last five
(5)
years of this period of time, any consideration of mitigation of
penalty which might be entertained is now clearly beyond the proper scope of the
Board's authority. Claimant has already had numerous opportunities to demonstrate
that he could be a valued employe to Carrier. Claimant wrote his own book regarding his employment with Carrier; and the instant case was Claimant's "last
chapter" in that book.
A W A R D
Claim denied.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment
Board
By
,/l~o~emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 23rd day of February, 1983.
Award No.
9398
Docket No.
8962
2-m-FO-'83
NATIONAL RAILR(1AD ADJUSTMENT BOARD
By Order of Second Division