Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10129
SECOND DIVISION Docket No. 10252
2_MNRC-MA-' 84
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Metro North Commuter Authority (Consolidated Rail Corporation)
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
J. Smyth to service and compensate him for all lost pay up to time of
restoration to service at the prevailing Machinist rate of pay.
2. That Machinist J. Smyth be restored to service with seniority unimpaired
and compensated for all insurance benefits, vacation benefits, holiday
benefits and any other benefits that may have accrued to him and were
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 Acct
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, J. Smyth, entered Carrier's service on September 19, 1978. During
the relevant time period, he was employed as a machinist at Conrail's Harmon Shop
located in Harmon, New York. On November 20, 1981, Claimant was notified by
letter, sent by certified mail, return receipt requested, to Claimant's last known
address, to attend a trial on November 25, 1981, in connection with the following
charges:
"Being absent on November 5, 6, 7, 10, 11, 12, 13, 16, 17, 18, 19,
1981, which, in light of your previous attendance record, constitutes
excessive absenteeism."
The trial was held on November 25, 1981, and Claimant did not appear. There
were two Organization representatives at the trial, and they did not request a
postponement. Following the hearing, the Carrier notified Claimant that he was
dismissed from the service.
The Organization argues that Carrier acted in an arbitrary and capricious
manner when it dismissed Claimant because Carrier was aware that Claimant was
hospitalized at Stony Lodge Hospital during the period of his absenteeism and
being treated for drug problems. The Organization argues that Carrier is aware
Form 1 Award No. 10129
Page 2 Docket No. 10252
2-MNRC-MA-'84
that some of its employes have been suffering from drug problems because Carrier has
set up a rehabilitation program to deal with its employes suffering from drug and
alcohol abuse.
The Organization argues that drug abusers are handicapped, and discrimination
against the handicapped is illegal. The Organization argues further that the
Claimant has recognized his problem and has entered a drug rehabilitation program
to cure himself. Hence, the Organization concludes it was discriminatory and
arbitrary for Carrier to terminate Claimant.
The Carrier argues that the Organization representatives did not dispute that
Claimant had been absent on the days in question. Moreover, Carrier states that
the "mark-off sheet," which was introduced at trial, clearly showed that Claimant
was absent 16 days between October 25, 1981, and November 19, 1981. Carrier argues
that although it since has learned that Claimant was hospitalized, the fact rem~iins
that Claimant did not have permission to be off from work. Mere notification,
argues the Carrier, does not excuse absences.
Finally, Carrier argues that the discipline assessed was warranted because of
Claimant's brief service, and that on May 6, 1981, Claimant had been reprimanded for
continued excessive absenteeism. Carrier argues that the Harmon Shop, where
Claimant worked, is the largest car repair shop in the region and is vital to the
successful operation of the company. Excessive absenteeism cuts right into the
heart of the railroad's operation and seriously impedes productivity.
This Board has ruled, on numerous occasions, that excessive absenteeism is a
serious offense and one for which a Carrier may legitimately take serious disciplinary
action up to and including discharge. In Second Division Award 7348, we held:
"When an employee is so consistently and habitually absent over a long
period of time that his employment becomes a serious liability rather
than an asset, Carrier is entitled to terminate his services."
Also, in Second Division Award -5409",-,
"Nothing in the agreement obligated the Carrier to attempt to operate
its railroad with employees repeatedly unable or unwilling to work the
regular and ordinarily accepted shifts, whatever reason or excuse exists
for each absence
...."
Based on the record of the Claimant in this case, the Carrier had a sufficient
basis to terminate his employment for excessive absenteeism. This Board will not
substitute its judgment for that of the Carrier unless it finds that the action
taken by the Carrier is arbitrary, discriminatory, or capricious. In this case,
based on the record of the Claimant, we do not find that the action taken by the
Carrier violated any of those principles. Hence, we will not set aside the
discipline and the claim will be denied.
Form 1 Award No. 10129
Page 3 Docket No. 10252
2. MNRC-MA-_' 84
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
17th day of October 1984.