Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9859
SECOND DIVISION Docket No. 9949
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was_rendered.
( International Brotherhood of Fireman and Oilers
( System Council #11 AFL-CIO
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That Mr. H. N. Boykin was unjustly dismissed from the service of the
Missouri Pacific Railroad Company on December 4, 1981, on charge
of his failure to protect his assignment as a mechanical laborer
at North Little Rock Arkansas.
2. That accordingly, the Missouri Pacific Railroad Company restore
Laborer, Mr. H. N.~Boykin to service
(a) with his seniority rights unimpaired;
(b) compensation for all time lost, plus 12% annual interest;
(c) make whole all vacation rights, personal leave days, and all other
benefits that are a condition of employment;
(d) pay premium (or hospital dues) for hospital, surgical and medical
benefits for all tune held out of service;
(e) pay premium for his group life insurance for all time held out of
service.
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 o f 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.
After a hearing was held on November 30, 1981, the Carrier dismissed Laborer,
H. N. Boykin, the Claimant, from service on December 4, 1981 for failure to
protect his assignment due to excessive absenteeism, the "dates being November 6,
9, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 23, 1981 and upon a review of his prior
work record. Before his dismissal from service, the Claimant had been employed
by the Carrier for nine (9) years.
Form 1 Award No. 9859
Page 2 Docket No. 9949
Rule 26 of the Controlling Agreement which is entitled "Absence From Work
Without Leave", provides as follows:
"Rule 26. Employees shall not lay off without first obtaining
permission from their foreman to do so, except in cases o f
sickness or other good cause of which the foreman shall be
promptly advised."
The Organization contends that the Claimant was absent for good cause, inasmuch
as he was unavoidably detained on November 5, 1981. On that date he was placed
under arrest and incarcerated for failing to notify a pre-trial probation officer.
Moreover, the Claimant was unable to notify the Carrier as to his absence because
he was not permitted any outside phone calls, other than to an attorney. Also,
the Organization claims that the Carrier was aware of the Claimant's predicament
after the weekend beginning November 6, 1981. Accordingly the Organization states
that the Carrier pre-judged the Claimant's dilemma and had already decided to
bring him up on charges.
Based on the evidentiary record, the Board has concluded that the Claimant
could have avoided incarceration by satisfying the requirements of "pretrial
probation". He failed to do so and was jailed. The Board is of the view that
incarceration is not "good cause" to be absent from work. Accordingly, in Second
Division Award 6606 (Pagoda) it was stated:
"***Does Claimant's incarceration constitute unavoidable
absence from work on account of sickness or any other good cause? The
Board has previously held that confinement in jail does not constitute
unavoidable absence for good cause. (Award 4689, Second Division,
Daly, April 28, 1965. )
* * *
Claimant has placed himself in a position of being absent from service,
but not unavoidably. He should be cognizant of and is liable for the
consequences of violating the law. His conscious violation of the law
does not constitute an unavoidable absence for good cause; violations
of the law are presumed avoidable.***."
Consistent with Award 6606, Second Division Award 8266 indicated:
"***Numerous previous awards have supported the right o f a
carrier to consider incarceration for a cause not to be 'good cause
for absence..."
The Claimant was given advance notice that a review of his "personal record"
would be included in the investigation. The Board finds nothing improper in the
introduction o f the Claimant's personal record at the investigation. See for
example, Second Division Award 6606, in which it was stated:
Form 1 Award No. 9859
Page 3 Docket No. 9949
"The introduction of Claimant's prior record for review in the
investigation, in conjunction with the facts attendant to the
present record, was properly considered in arriving at the
discipline to be imposed.0
The review of the Claimant's prior record disclosed a consistent pattern
of attendance problems from 1973 until his thirty (30) day deferred
suspension in January, 1981 for his failure to protect his assignment on
January 9, 1981, and his repeated failure to call in and report off as instructed
by the Master Mechanic. The Board finds that the Claimant's prior record in
conjunction with his excessive absenteeism in November 1981 was properly
considered in arriving at the discipline imposed by the Carrier.
The Board cannot conclude that the Carrier acted in either a capricious
or arbitrary manner in dismissing the Claimant from service for failing to
protect his assigned job on account o f excessive absenteeism in November, 1981.
As a final consideration, the Board has concluded that there is substantial
evidence in the record to sustain the Carrier's dismissal o f the Claimant.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this 11th day of April, 1984