Form 1 NATIONAL RAILROAD ADJUSUNT BOARD
SECOND DIVISION Award No. 9_599
Docket No. 9406
2-WT-CM-'83
The Second Division consisted of the regular members and in
addition Referee Steven Briggs when award was rendered.
(Brotherhood Railway Carmen of the United States arid Canada
Parties to Dispute
:(
(The Washington Terminal Company
Dispute: Claim of Employes
:
1. The Washington
Terminal
Company improperly divided the absence,
due to one continued illness into two charges in order to increase
the degree "of punishment" it administered Car Cleaner W. I. Wallace.
The Washington Terminal Company so divided the allegation and disci
pline in violation of the controlling agreement, specifically rules 18
and 29, when it held investigative hearings on August 22, 1980 and
September 24, 1980.
2. Accordingly, Mr. Wallace should be made whole in line with rules
18 and 29.
The
Washington
Terminal Company should be ordered to
deal properly with the two cases by compensating Mr. Wallace for
his net wage loss as well as for any other loss he may have been
caused to suffer by the Washington Terminal's miscarriage of justice. Both charges should be expunged from his 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 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.
The Claimant is a Car Cleaner with approximately two and one-half years'
service at the time of the incidents
giving
rise to this case. On August 6, 1980,
he was charged with the infraction quoted below:
Excessive loss of time from duty during the months of
April, May, June
and July, 1980, as follows:
April
1980 - 16, 17
and 23.
May
1980
- 2.,
3s 4: 17., 18,
21, 22, 23, 24, 25,
2 8, 29, 30
and
31.
June
1980 - 1, 15
and 21.
July 1980 - 9, 10, 11, 17,
18, 19,
20,
23, 24,
25, 26 and 27.
Form 1 Award No. 9599
Page 2 Docket No.
9406
2-WT-CM-,83
As a result of an August 22 investigation of the incident a formal reprimand
was placed in his service record.
On Septerrfoer
3, 1930,
the Claimant was again charged with the same offense
Excessive loss of time from duty during the month of
August
1980,
as follows:
August
1980 - 3, 6, 7, 3., 9, 10, 13
and 14.
A formal investigation followed and, as a result, the Claimant was suspended
for three days.
The Organization argues that both the reprimand and suspension are in violation of Rules
18
and 29, quoted in pertinent part below:
Rule 18
In case an employee is unavoidably kept from work he will not
be discriminated against, An employee detained from work on
account of sickness or any other good. cause shall notify his
foreman as early as possible . . .
Rule
29
No employee shall be disciplined without a fair hearing by
designated officer of the Carrier . . .
The Organization notes that in general the Claimant's absences were directly
related to his legitimate illnesses (hypertension and arthritis) and that
according to Rule
18
he should not have been disciplined.
Second, the Organization maintains,, the Claimant provided medical verification
of his absences. In spite of this, the Carrier still punished him for absences beyond his control.
The Organization's final major argument is procedural and twofold. On the
one hand, it asserts that the Carrier issued two sets of charges against the
Claimant for absences related to the same continued illness. This enabled the
Carrier to increase the severity of discipline by using the reprimand as a stepping
stone to the
3-day
suspension. And on the other, the Organization argues that the
investigatory hearings were not fair and impartial.
The Board has carefully evaluated the Organization's arguments, but concludes
that they are without support in the record. This is particularly true with respect to the Claimant's "medical verification" of his absences. He missed three
days in April (16, 17 and 23) and submitted no documents indicating he had seen
a doctor on any of those days. He was absent on ?gay 2,
3
and .without seeing
a doctor. And he submitted a. slip from a Dr. Nash covering his absences of
May 17 to June
3,
yet he did not see Dr. Nash on any of those days except June
3y
Form 1 Award No. 9599
page 3 Docket No. 94OES
2-WT-CM-'83
Thus, the seriousness of the Claimant's illness and the validity of the Dr.'s
slip for the days prior to June 3 is highly suspect.
And the Claimant's excuse for his absence of Saturday,. June 21 stretches
credulity beyond acceptable limits. He reportedly did some home repair for his
elderly mother. As noble as such a gesture seems, the Board wonders why he did.
not help her on either Monday or Tuesday, his scheduled days off.
The Claimant also :hissed several days' work in July, including the period
from the 17th through the 27th. He did not see Dr. Nash during this period,
yet submitted a disability certificate from Nash indicating he had been incapacitated from July 15 through 29. Again, the Board wonders how the Dr.
could possibly verify such illness without seeing the Claimant during the
period in question.
There are similar flaws with the Claimant's August absences as well. On
balance therefore, the record. does not support the Organization's contention that
the Claimant's absences were for good cause. It is clear that he suffers from
arthritis and hypertension, but the record does not contain enough evidence to
convince the Board that his absences between April and August, 1980, were related
to those illnesses.
With respect to the Organization's procedural arguments., the Board notes
that such arguments were not raised during the handling of this case on the
property. It would therefore be improper for the Board to consider them now.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUS24ENT BOAPJ)
By Order of Second Division
ATTr.ST:
' ri~
J. Dever - Executive Secretary
Dated at Chicago., Illinois, this
31st day of August, 1983.