FORM 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10402
SECOND DIVISION Docket No. 10084
2-N&W-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
( Norfolk & Western Railway Company
Dispute: Claim of Employes:
1. That the N&W Railway Company violated the controlling
Agreement of September 1, 1949, as subsequently amended
when on August 19, 1981, Car Repairer-Welder, L. W.
Montgomery was given a formal investigation resulting in
an unjust assessment of fifteen (15) day deferred
suspension against his service record, effective,
October 8, 1981.
2. That the investigation was improperly arrived at, and
represents unjust treatment within the meaning and
intent of Rule No. 37 of the Controlling Agreement.
3. That because of such violation and unjust action, the
Norfolk and Western Railway Company be ordered to adjust
the discipline of L. W. Montgomery.
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 was assessed a 15-day deferred suspension following
a formal investigation on the charges:
"...
to determine your responsibility in connection
with your excessive absenteeism and early quits,
the latest of which were December 10, 11, 12, 26
and 31, 1980; January 9; February 13; March 9, 13;
July 22, 30, 31, 1981."
Form 1 Award No. 10402
Page 2 Docket No. 10084
2-N&W-CM-'85
Claimant's supervisor, Foreman J. Fiery, testified at the
investigation that, after a period of recurring absences, he
informed the Claimant in November of 1980, in the presence of
union committeeman Thatcher, that formal action would be taken if
the Claimant's attendance did not improve. Subsequent to this
conversation, Claimant's attendance record worsened rather than
improved. According to Fiery's testimony, the Claimant had an
absentee rate in 1980 of 7.4%; after he was warned his absentee
rate deteriorated in 1981 to 8.75%. The Carrier contends that
this alleged absenteeism was excessive and warranted the
imposition of the discipline imposed herein.
Claimant testified in his defense that the absences assessed
on December 10, 11 and 12, 1980 were improper because he
attempted to work but was sent home by Foreman Fiery. That
testimony was rebutted by Foreman Fiery, who stated that Claimant
was sent home on November 10, 1980 because he had injured his
right eye in a fight; on the December dates, Claimant had not
been sent home, Fiery stated.
Other than the exceptions noted above, neither the Claimant
nor his representatives offered any explanation concerning his
absences. To the contrary, Claimant testified at hearing that
"on the days that I missed like I know I've missed too many days.
A lot of them was, I don't know. There's no excuse."
Nevertheless, the Organization contends that the claim
should be sustained because the Claimant did not receive a fair
and impartial investigation, in that: 1) the Hearing Officer
permitted testimony concerning Claimant's attendance record prior
to the dates for which he was actually charged; 2) a recording
device was used to obtain a transcript of the formal
investigation; 3) the General Foreman, rather than the charging
officer, signed the original letter of charges; and 4) an
excessive amount of time elapsed before a decision was rendered
following the investigation. None of these contentions is in our
judgment meritorious in this case. As to the first point, the
evidence adduced at the investigation regarding Claimant's prior
absences was clearly relevant and established that Claimant was
notified that further absences would result in discipline. With
respect to the other procedural objections, the Board finds that
the Claimant was not deprived of the fair and impartial
investigation to which he is entitled tinder Rule 37 of the
controlling agreement. Prior awards have held that the use of a
recording device at an investigation is neither violative of the
relevant rule not prejudicial to the Claimant's rights. See,
e.g., Fourth Division Award No. 3754; Public Law Board 1760,
Award No. 29. By the same token, the signing of charges by
someone other than the charging officer, and the rendering of the
decision twenty days past the 30 day deadline did not prejudice
Claimant's appeal and are not grounds for overturning the
Carrier's disposition.
Form 1 Award No. 10402
Page 3 Docket No. 10084
2-N&W-CM-'85
As to the merits, it is apparent that there was a narrow
issue of credibility as to whether Claimant had unexcused
absences on December 10, ll and 12 of 1980. Prior awards often
note that the Board is neither authorized nor constituted to make
credibility determinations, but instead inquires as to whether
the evidence adduced at hearing reasonably supports a finding of
Claimant's culpability. See Second Division Awards 8280, 7912,
7955, 8201 and 7973. In the instant case, especially in view of
the Claimant's own admission that his absences were excessive, we
find that there is no basis for the Board to disturb or interfere
with the determination of the hearing officer that Claimant's
absenteeism warranted a fifteen-day deferred suspension.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~~ al!!E:
I
a~ J. ev - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of May, 1985.