Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10149
SECOND DIVISION Docket No. 10225
2-CRC-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
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to remove the five
day suspension assessed Machinist J. A. Carter, from his service record
in accordance with the provisions of 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, J. A. Carter, began his service with the Carrier in 1971. He was
employed as a machinist. On August 4, 1980, Claimant was instructed to attend a
trial on August 12, 1980, in connection with the following charge:
"To develop the facts and determine the responsibility, if any, in
connection with your failing to report for duty 8 a.m. to 4 p.m. on
the following dates: July 19, 20, 21, 22, 29, 1980, and August 1, 2,
3, 1980, which, in light of your previous record, as indicated per
attached G-1518. Daily attendance record, constitutes excessive
absenteeism."
As a result of the trial, Claimant was found guilty and assessed a five-day
deferred suspension.
The Organization contends that the Carrier acted in an arbitrary and
capricious manner when it imposed the discipline on the Claimant. The Organization
argues that the Claimant complied with the rules which required that an employe
notify the work location if he is going to be absent.
The Organization argues further that the Claimant was an elected delegate
to the union convention and was attending the convention on July 29, 1980, and
August 1, 2, and 3, 1980. The Organization contends that Carrier's own officers
agreed that Claimant was wrongfully charged with four of the days and struck them
from the record. Since the Claimant complied with the agreement on the other four
days, argues the Organization, he has, thereby, committed no wrong and should not
have been found guilty.
Form 1 Award No. 10149
Page 2 Docket No. 10225
2-CRC-MA-'84
The Organization contends further that since the notice referred to his
previous attendance record, he was prejudged to be excessively absent. Moreover,
since the Carrier presented no evidence of the "normal" absence record of a
"normal" employe, it could not uphold a finding of excessive absenteeism because
it is impossible to know what is excessive.
The Carrier argues that the Claimant admitted his absences on July 19, 20,
21, 22, 29, 1980, and August 1, 2, and 3, 1980, at the hearing, although he
contended he had a valid excuse. Since Claimant admits his absences, argues the
Carrier, he has thereby admitted his guilt, and the Carrier has met its burden.
Carrier also argues that an employer has a right to expect its employes to show
up for work and has a right to take disciplinary action against employes who
neglect their duty and responsibility to their employers. Carrier argues that
since Claimant was absent a total of 26 days from January 1, 1980, to August 3,
1980, he was "slipping into the unacceptable habit of frequent absences" and that:
the five-day suspension cautioned the Claimant that excessive absenteeism was a
serious violation and would not be tolerated by the Carrier. Carrier contends
that a five-day deferred suspension is a moderate discipline and since Claimant
was guilty, it was fully warranted in this case.
Carrier also contends that the record is clear that Carrier was not informed
that the August 2 and 3 absences were for union business until after the charges
were lodged against the Claimant on August 4, 1980. But, even disregarding these.
dates, Carrier argues that Claimant's record still reflects an unacceptable number
of excessive absences.
This Board has reviewed the record in this case, and it finds that the action
taken by the Carrier was not arbitrary or capricious. It is clear that the Claimant
had an excessive number of absences during the year 1980 and that his large number
of days missed in July and August aggravated the already poor situation. This
record is clear that Claimant was properly on union business for two days of the
convention, but he never notified the Carrier, until afterward, that he wanted
the extra two days for the union business. As the rules require, Claimant should
have asked for the union leave for the full four days of the convention in advance
of going to the convention. The Carrier seems to indicate that had that been the
case, it would have granted him that permission.
It is clear that Carriers have a right to discipline employes for excessive
absenteeism. 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."
The five-day deferred suspension assessed by Carrier was a very moderate
penalty. However, it is believed that under the facts and circumstances present
that the discipline has served its purpose and will be removed from Claimant's
record.
Form 1
Page 3
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 31st day of October 1984.
Award No. 10149
Docket No. 10225
2-CRC-MA-'84
A W A R D
Claim disposed of in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division