F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9508
SECOND DIVISION Docket No.
9166
2-SPT-FO-183
The Second Division consisted of the regular members and in
addition Referee Josef P. Sirefman when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Southern Pacific Transportation Company (Pacific Lines
Dispute: Claim of Employes:
1. That in violation of the current agreement Fireman and Oiler Paul
Gonzales, was unjustly dismissed from the service of the Carrier on
March
5, 1980,
following a hearing held on February
22, 1980.
2.
That accordingly, the Carrier be ordered to make the aforementioned
Paul Gonzales, whole by restoring him to Carrier's service with
seniority rights unimpaired, plus restoration of holiday, vacation,
health and welfare benefits, pass privileges and all other rights,
benefits and/or privileges that he is entitled to under rules, agreements, custom or law and compensated for all lost wages. In addition
to money claimed herein, the Carrier shall pay the Claimant an additional
amount of
6°%
per annum compounded on the anniversary date of this claim.
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.
Fireman-Oiler Paul Gonzales was hired on September
14, 1977.
He was served
with a notice of investigation on January
17, 1980
charging him with irregular
attendance during the period October 1,
1979
to January
15, 1980.
A hearing was
held on February
22, 1980
but Claimant did not appear nor was any explanation for
his absence forthcoming. The investigation proceeded without him. Claimant was
found guilty of the charges and on March
5, 1980
was dismissed from service.
A review of the record before this Board establishes that Claimant was duly
notified of the hearing, gained a postponement at his own request, and still
failed to appear on the new date. Thus it was wholly appropriate for the hearing
to proceed in his absence. As Referee J. McGovern observed under similar facts,
"The investigation was originally postponed at claimant's request and rescheduled
for a date certain. Claimant failed to appear for the second time after proper
notice, etc. His failure to appear under these circumstances was at his own
peril. (Award No.
6499,
Second Div.)". Also Second Division Award No.
8439
F orm 1
Page 2
Award No. 9508
Docket No.
9166
2-SPT-FO-'83
citing with approval the following language from Second Division Award 5987: "When
Claimant failed to appear at the hearing..., after having been properly served
with notice, he acted at his peril; and Carrier's proceeding with the hearing in
his absence was not a denial of due process."
Thmre was substantial evidence to sustain the Carrier's decision to discipline
Claimant for his irregular attendance. As the Claimant's prior record is poor,
including a past dismissal with reinstatement on a leniency basis without
any demonstrable improvement, the Carrier's decision to dismiss him was reasonable.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By-.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
.e.
I
-:e~
Rosernarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 8th day of June, 1983.