Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9972
SECOND DIVISION Docket No. 10023
2-L&N-FO-'84
The Second Division consisted of the regular member and in
addition Referee Paul C. Carter when award was rendered.
( Int'1. Brotherhood of fire-men and oilers
( System Council No. 44 AFL-CIO
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim of Efiployes:
1. That under the current and controlling agreement Service Attendant
T. Cash, I. D. No. 93317, was unjustly dismissed from the service of the
Louisville and Nashville Railroad Company on January 8, 1982 after a formal
investigation was held on December 1 7, 1981.
2. That accordingly Service Attendant T. Cash be restored to service at the
Louisville and Nashville Railroad Company, Boyles Shops, Birmingham, Alabama,
compensated far all lost time, vacation, health and welfare, hospital, life and
dental insurance be paid effective January 8, 1982 and the payment of 6% interest
rate be added thereto.
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.
Claimant was employed as a service attendant in Carrier's Boyles Shops,
Birmingham, Alabama. On December 11, 1981, he was charged
"You are charged with being absent and failing to protect your
job assignment with the L&N Railroad Company on December 2, 3, 6, ;7,
8, 9, and 10, 1981 and not complying with Agreement Rule 22 between
the L&N Railroad and the International Brotherhood of Firemen, Oilers,
Helpers, Roundhouse and Railway Shop Laborers of which you are a member,
after being previously warned and disciplined for these same charges
on previous occasions.
Form 1
Page 2
Award No. 9972
Docket No. 1002.3
2-L&N-FO-'84
"Investigation of
these charges will be conducted at 9:00 A.M.,
Thursday, December 17, 1981, at the Division Office Building, 4100
Vanderbilt Road, Birmingham, Alabama.
Arrange to be present with your representative, if you desire his
presence and any witness you may wish to testify in your behalf.
Acknowledge receipt of this letter."
While the
investigation was
scheduled to begin at 9:00 A. M., claimant was
not present at that time. The
investigation was
recessed and resumed upon
claimant's arrival. Following the investigation, a transcript of which has
been made part of the record, claimant was dismissed from service on January .3,
1982.
Substantial evidence was presented in the
investigation, including
claimant's
statement, that claimant did not report for work on the days listed in the
letter of charge, nor did he report off to any supervisor. In the investigation,
claimant's prior record with respect to absenteeism was introducted, and made
a part of the record. No objection was made by claimant or his representativAa
concerning the introduction of claimant's prior record during the course
of the investigation. It is well settled that if exceptions are to be taken
as to the manner in which an investigation is conducted, such exceptions must
be taken during the course of the investigation; otherwise, they are deemed
waived. It has been held on numerous occasions, however, that the introduction
of an employe's prior service record into an investigation is not in violation
of the Agreement or prejudicial to the claimant. The prior record may not be
used to prove the charge, but may properly be considered in arriving at the
discipline to be imposed for a proven offense.
Based upon the evidence in the dispute, including claimant's prior absentee
record, there is no proper basis for the Board to interfere with the discipline
imposed by the Carrier. As stated in our Award No. 6710:
"Every employee has an obligation and a duty to report on time and
work his scheduled hours unless he has good and sufficient reason to
be late, to be absent, or to leave early. Those reasons must be
supported by competent and acceptable evidence. No employee may report
when he likes or choose when to work. No railroad can be efficiently
operated for long if voluntary absences are condoned."
A W A R D
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Second Division
Nancy
J
r - Executive Secretary
Dated at Chicago, Illinois, this 13th day of June, 1984