Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9766
SECOND DIVISION Docket No. 9303
2-SP-EW-'84
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company
(Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician C.
W. Beard was unjustly treated when he was suspended from service for a period of
ten (10) days on September 22, 1979, following investigation for alleged violation
of portions of Rules 802 and 810 of the General Rules and Regulations of the
Southern Pacific Transportation Company (Pacific Lines). Said alleged violation
occurring on September 8, 9, and 10, 1979.
2. That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Compensate Electrician C. W. Beard for all time lost
during the ten day suspension; and the loss of wages to
include interest at the rate of six percent (6%) per annum.
(b) Pay employe's group medical insurance contributions,
including group medical disability, dental, dependent's
hospital, surgical and medical, and death benefit premiums,
and railroad retirement contributions for all time that
the aforesaid employe was held out of service.
(c) Reinstate all vacation rights to the aforesaid employe.
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.
Form 1 Award No. 9766
Page 2 Docket No. 9.303
2-SP-EW-184
This is a claim for time lost by the Claimant Electrician for a ten-day
suspension from service following a formal investigation on the charges that
Claimant was in violation of Rule 802 and Rule 810. Rules 802 and 810 state the
following:
Rule 802:
"Indifference to duty, or to the performance of duty
will not be condoned
..."
Rule 810:
"Employes
...
must not absent themselves from their
employment without proper authority
...
Continued failure
by employes to protect their employment shall be sufficient
cause for dismissal
..."
The Organization argues that Claimant was unjustly dealt with when he was
assessed a ten-day suspension for being absent three days and that such action on
the part of the Carrier violated Rules 25, 36 and 37 of the controlling Agreement,
which read as follows:
Rule 25
"(a) An employe detained from work account sickness or
for other cause, shall notify his foreman as early
as possible. When returning to work he shall give
the foreman in charge sufficient notice (at least
8 hours) so that proper arrangements may be made.
"(b) If an employe is unavoidably kepi from work, he
will not be unjustly discriminated against."
Rule 38
"An employe who considers himself unjustly treated, or that
this agreement as applicable to his craft is not being
properly applied, shall have the right to submit the facts
informally to his foreman for adjustment and/or to the
nearest duly authorized local committee of his craft. The
duly authorized local committee (of not to exceed (3J
members of the craft), if they consider it justified,
may submit the case informally to the foreman, general
foreman and/or the master mechanic (or from foreman to
general foreman and/or to shop superintendent in General
Shops)."
Form 1 Award No. 9766
Page 3 Docket No. 9303
2-SP-EW-'84
Rule 39
"No employe shall be disciplined or dismissed without a
fair hearing by the proper officer of the Company.
Suspension in proper cases pending a hearing which shall
be prompt, shall not be deemed a violation of this rule.
At a reasonable time prior to the hearing, such employe
shall in writing, be apprised of the precise charge
against him, be given reasonable opportunity to secure
the presence of necessary witnesses and shall have
the right to be represented as provided for in Rule 38.
If it is found that an employe has been unjustly suspended
or dismissed from the service, such employe shall be
reinstated with his seniority rights unimpaired and com
pensated for the wage loss, if any, resulting from said
suspension or dismissal. Stenographic report of hearing
will be taken if requested and employe's representative
will be furnished with a copy."
Claimant alleges that he had intestinal influenza and was unable to come to
work on September 8, 9 and 10, 1979. Claimant further alleges that on September
6, 1979, he notified a Trainmaster that he was sick and would not be coming to
work on September 7th. The Organization contends that in accordance with past
practice procedure applied at the Tucson Roundhouse when an employe notifies the
foreman he will be absent from work because of illness, the employe is considered
off work until he notifies the Roundhouse foreman or his representative to mark
him back in the turnover book. Furthermore, Claimant contends that on September
7th his son called the Carrier's tower to notify the Carrier that he was still
too i11 to return to work an September 8th but his son could not get through to
the Roundhouse foreman. The record shows no contention by the Claimant or the
Organization that Claimant personally contacted or made an effort to advise the
Carrier of his absence from work other than on September 6th, nor was there any
communicated permission to be off on September 8, 9, or 10, 1979.
With this as factual background far the events in question, the Board find's,
as in previous awards, that there is an obligation on the employe to protect the
Carrier's service on the days he is assigned to work. (See this Division's Awards
in Nos. 6710 and 821x.) The issue here is not whether Claimant's excuse was good
cause for being absent from work, but whether Claimant fulfilled his obligation
to inform the Carrier and receive permission to lay off. Any past practice
concerning reporting in or notification to a foreman or his representative relied
on by the Organization as controlling cannot apply when the record indicates
Claimant specifically informed the Traimaster on September 6th that he would bee
returning to work on September 8th. The excuse of an unverifiable attempt to
contact the Carrier by someone other than Claimant is not sufficient to justify
Claimant's failure to show up for work on the disputed days. Second Division
Award 9327 (Goldstein).
Form 1
Page 4
Award No. 9766
Docket No. 9303
2-SP-EW-184
The Board finds the summarized evidence overwhelmingly substantial with
regard to Claimant's non-compliance with Rules 802 and 810 of the controlling
Agreement. Numerous prior awards of this Board have set forth the principle that
absenteeism is serious and that excessive and habitual failure to report to an
assignment is sufficient grounds for discipline. (For example see Second Division
Awards 7348, 8216, 8523, 8238 and 8546.) The Carrier could hardly maintain normal
operations unless its employes regularly report to work. Second Division Award
7870 (Roukis). The discipline imposed here is not harsh, and there is no basis
on which the Board should interfere with the Carrier's action. The record is
adequate to support the penalty assessed.
A W A R D
Claim denied.
ATTEST
NATIONAL, RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nan Dever - Executive Secretary
Dated at Chicago, Illinois this 18th day of January 1984.