Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10400
SECOND DIVISION Docket No. 10064
2-SOU-CM-'85
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
( Brotherhood Railway Carmen of the
Parties to Dispute: ( United States and Canada
( Southern Railway Company
Dispute: Claim of Employes:
1. That Carman R. C. Denton, Cincinnati, Ohio was unjustly
suspended from service from September 1, 1981 to
September 30, 1981.
2. That the Carrier be ordered to pay Carman R. C. Denton
for all time lost both regular and overtime while
suspended from service, plus 6% interest.
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.
Carman R. D. Denton, the Claimant, is employed at the
Carrier's Gest Street Yard in Cincinnati, Ohio. On August 10,
1981, Carrier's General Foreman Mullins held a preliminary
investigation in which the Claimant was charged with excessive
absenteeism, habitual tardiness, and failure to protect his
assignment. He was assessed sixty (60) days suspension from
service. Claimant disagreed with this disciplinary action and
requested a formal investigation pursuant to Rule 34(c).
Following the investigation, which was held August 28, 1981, the
Claimant was notified by letter that the evidence proved him
guilty of the charges, and that a 30-day disciplinary suspension
would be assessed from September 1, 1981 until September 30,
1981.
Form 1 Award No. 10400
Page 2 Docket No. 10064
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The transcript of the investigation reveals that Claimant
failed to work all or part of his assignment on four occasions
during the 30-day period preceding August 10, 1981. On July 12,
1981, Claimant reported for work, and then thirty minutes later
claimed that he had a stiff neck and had to go home. On July
29th, Claimant reported off due to a rash on his hand. Exhibits
entered at hearing indicate that Claimant obtained three
statements from physicians who treated him for his skin
condition. Although the statements confirm that Claimant did
indeed have a rash on his hand on July 29, it was merely
recommended that Claimant wear rubber gloves to protect his skin
from welding burns. There was no indication from any of the
physicians' statements that the rash rendered Claimant unfit for
his work assignment.
On August 8, 1981, Claimant was thirty minutes late
reporting for work. At the time, he gave no reason or excuse for
his tardiness. During the formal investigation, however,
Claimant asserted that he had experienced car trouble on that
date. The next day, August 9, 1981, Claimant reported off and
gave no reason for his absence until the date of hearing when he
claimed that he had been struck in the face with a toy by his
child.
Claimant's past attendance record, relied upon by the
Carrier in assessing the level of discipline, shows that Claimant
was absent from his assignment on sixty-one (61) occasinos prior
to this investigation for various reasons, including his own and
his wife's illness, car trouble, weather, etc. Claimant was
repeatedly warned about his absences, and had been suspended a
total of twenty (20) days in the past for the same offense.
The Carrier contends that the evidence adduced at the
investigation fully established that Claimant was guilty of the
charges against him. In taking into consideration the
seriousness of the proven charges, as well as Claimant's
unsatisfactory past record of absenteeism and tardiness for which
he had been warned, the disciplinary action taken was warranted
and justified.
The Organization takes the position that Claimant was
unjustly dealt with when he was assessed a thirty (30) day
suspension, and that such action on the part of the Carrier
violates Rule 34 which provides that discipline will not be
imposed except where there is just and sufficient cause.
Moreover, the Organization argues that each time Claimant was
absent, he complied with Rule 30(a) of the Agreement, which
states:
Form 1 Award No. 10400
Page 3 Docket No. 10064
2-SOU-CM-'85
"(a) In case an employee is unavoidably kept
from work, he will not be discriminated against.
An employee detained from work on account of
sickness or for any other good cause shall
notify his foreman as early as possible."
Since, according to the Organization, the Claimant notified
his foreman of the absences in question in accorance with the
above rule, the Carrier's imposition of discipline in this case
was arbitrary, capricious, and an abuse of its managerial powers.
Upon a thorough examination of the record, the Board finds
the summarized evidence overwhelmingly substantial with regard to
Claimant's excessive days of absenteeism and tardiness. It
should be emphasized that Rule 30(a), cited by the Organization,
has little relevance here because the issue is Claimant's
absenteeism, and not whether he notified the Carrier of his
absences. Prior awards of this Board have often set forth the
principle that notification of absence may not be used in defense
of an employee's excessive absenteeism. (For example, see Second
Division Awards 7748, 7803, 8876). Thus, Claimant's excuses,
some of which were not even offered until the time of the
investigation, do not justify his failure to report to work
regularly and on time. It is beyond cavil that the obligation is
on the employee to protect the Carrier's service on the days he
is assigned to work, and failure to do so is sufficient grounds
for discipline, including dismissal. (See this Division Awards
6710, 8216, 7348). The record reflects that Claimant was
afforded opportunities in the past to improve his absentee
record, but to no avail. We cannot find any evidence whatsoever
that the Carrier was biased, arbitrary, capricious or
unreasonable in assessing the level of discipline imposed here.
Therefore, we must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
7
Attest: _ _
ancy J er - Executive Secretary
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Dated at Chicago, Illinois this 22nd day of May, 1985.