Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 94.80
SECOND DIVISION Docket No.
9629
2-C&NW-cm-'83
The Second Division consisted of the regular members and in
addition Referee Barbara W. Doering when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:.:
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Carman Lionel C. Robertson was erroneously charged with excessive
absenteeism on August
6, 7,
and
8, 1980.
2. Carman Lionel C. Robertson was unjustly assessed thirty (30) days
suspension on August 25,
1980,
following investigation held August
21,
1980.
3. That the Chicago and North Western Transportation Company be ordered to
make whole Carman Lionel C. Robertson, with all benefits that are a
condition of employment unimpaired, and compensate him for all time lost
plus 131%
interest on all such lost wages, in accordance with Rule
35.
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,
1934.
'this Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On August 11,
1980
Claimant was notified to appear for a formal investigation
on the following charge:
"Your responsibility for your excessive absenteeism. Your
absenteeism became excessive when you again failed to protect
your assignment on August
6, 7,
and 8,
1980."
An investigation followed pursuant to this Notice on August 21,
1980
which the
Organization contends was not fair and impartial because: 1) the hearing officer
did not limit consideration to the 3 specific dates mentioned in the Notice; and
2) because the hearing officer became a witness by introducing evidence as to
Claimant's past record.
The Board does not agree with Petitioner that under a charge of excessive
absenteeism, consideration must be limited to the cited triggering absence. The
word "excessive" clearly connotes an accumulation of absences which have reached
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Award No. 9480
Docket No. 9629
2-C&NW-CM-'
83
an intolerable level. We do agree with Petitioner that absences after the
triggering absence and after issuance of the Notice should not be considered,
since at the time of issuance Carrier had obviously concluded the intolerable
level had been reached and it is inappropriate to add new charges after the
event.
Thus the Board finds that the investigation and appeal procedure was fairly
conducted and that it was not improper to consider past absences in addition to
the triggering absence under a charge of excessive absence. Consideration of
absences subsequent to issuance of the Notice was not proper, but reference to
such absence does not necessarily invalidate the original charge. The claim must
simply be sustained or dismissed on the basis of evidence (in existence) and relied
upon at the issuance of the Notice.
Petitioner argues that since Claimant notified Carrier that he was sick and
unable to work and further substantiated this claim with a doctor's statement
upon his return, that he is not guilty of failure to protect his assignment on
August
6, 7,
and
8.
Carrier does not argue that he failed to notify the proper
authority or substantiate his illness. Carrier argues that for whatever reason
he was simply excessively absent. He had been absent six and a half days in
July and was off four and a half days in the first eight days of August. Carrier
argues that this is clearly excessive and the question of excuse becomes irrelevant
where an employe cannot maintain reasonably regular attendance.
The Board Agrees that the question of excuse is not the primary issue under
a charge of excessive absence. The record shows that Claimant was indeed
excessively absent in the period immediately preceeding the charges and in view
of his prior record which includes numerous conferences on the subject of absenteeism, the 30 day suspension imposed was not unduly harsh or arbitrary and the
claim is denied
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Ad:iustment Board
By
semarie Brasch - Administrative Assistant
Date at Chicag>, Illinois, this 4th day of May, 1983.