Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9730
SECOND DIVISION Docket No. 9185
2-CR-MA-'83
The Second Division consisted of the regular members and in
addition Referee Josef P. Sirefman when award was rendered.
( International Association of Machinists and
PARTIES TO DISPUTE: ( Aerospace Workers
( Consolidated Rail Corporatiaon
DISPUTE: CLAIM OF EMPLOYES:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
L. L. Crosby to service and compensate him for all pay lost up to
time of restoration to service at the prevailing Machinist rate of
pay.
2. That Machinist L. L. Crosby be compensated for all insurance benefits,
vacation benefits, Holiday benefits and any other benefits that may
have accrued and was lost during this period in accordance with Rule
7-A-1 (e) of the prevailing agreement effective May 1, 1979.
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 employes 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.
Claimant Larry L. Crosby, a machinist with the Carrier since November,
1974 was served with an April 24, 1980 Notice of Investigation charging "1.
Failure to report for duty on April 8, 9, 10, 11, 14, 15, 16, 21, 1980" and "2'.
Failure to work all the hours of your position on April 7, 1980: worked 6.4
hours". A trial was held on May 30, 1980 and Claimant was subsequently dismissed
from service on June 3, 1980.
Certain procedural arguments were raised for the first time at the Board
level by the Organization. It would be inappropriate for the Board to consider
matters not raised on the property. As Referee D. Eischen held in Second Division
Award No. 7122: "It is too well understood to require
documentation that
we
will not consider such de novo arguments which were not aired on the property"'.
Also see Second Division Awards 7484 and 7853.
Form 1 Award No. 9730
Page 2
Docket No
. 9185
2-CR-MA-183
In any event, the Notice of Investigation
provided Claimant
with sufficient
particularity so as to prepare a defense. Claimant
admitted in
the transcript
of
the trial
that
he had been
absent as charged in the Notice of Investigation.
The
doctor's note
(signed by
the doctor's secretary) proffered by Claimant does
not cover two days of his absence, and as for the remaining days the note fails
to indicate the nature of
the illness
which
prompted
his
absences. Indeed,
Claimant failed to follow the instructions in the note to report to duty on
April 15th without restrictions. In sum, the absences remain unjustified, and
there was substantial evidence to sustain Carrier's decision to discipline
Claimant.
In determining the penalty, a review of Claimant's entire record is proper.
Claimant's attendance has been very poor, especially in the months preceding
the absences involved here. Prior suspensions for excessive absenteeism are
part of that record. Accordingly termination was reasonable.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
WSW
By Order of
Second Division
ATTEST: -
Nancy Nancy J.
v,4V-
Executive Secretary
Dated at
Chicago, Illinois, this 7th day of December 1983.