Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10643
SECOND DIVISION Docket No. 10721
2-MP-MA-'85
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
Grievance - For removal of thirty (30) days deferred suspension from
the record of Machinist Apprentice Larry Preston. Carrier's unjust assessment was bases on an investigation held February 17, 1982, in violation of
the controlling Agreement effective June 1, 1960, as amended.
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 Larry Preston has been employed by the Carrier at the Houston,
Texas, Settegast Yards facility since. March 3, 1972. At the time of the
incident involved in this case, the Claimant was assigned as a Machinist
Apprentice.
On January 29, 1982, the Claimant failed to report for work at his usual
7 A.M. starting time. At approximately 12:10 P.M. on that date, the Claimant
advised that he had just been released from jail and would not be in for
work.
As a result of the above incident, the Claimant was advised to report
for an investigation in connection with absenting himself on January 29,
1982, without permission and a review of his personal absentee record and
other records of employment. Following an investigation held on February 17,
1982, the Claimant was assessed a thirty-day deferred suspension.
Form 1 Award No. 10643
Page 2 Docket No. 10721
2-MP-MA-'85
The Organization's position is that the Claimant had good cause to
lay off and that he notified his work place "promptly", within the meaning of
Rule 17 of the controlling Agreement, by calling the work place fifty-three
minutes after his release from jail, which was the earliest possible time
that he could do so. Rule 17 states:
"Employees shall not lay off without first obtaining permission
from their foreman to do so, except in cases of sickness or other
good cause of which the foreman shall be promptly advised."
The Organization further contends that the Claimant's past record was
wrongfully entered into the decision to discipline him.
The Carrier's position is that the Claimant admittedly failed to report
for work on January 29, 1982, and therefore absented himself without permission on that date as charged.
The Carrier contends that the Claimant had no justifiable excuse for his
unauthorized absence, as being held in jail for nonpayment of traffic tickets
was a consequence of his own conduct.
The Carrier submits that the discipline assessed was justified and was
in fact mild in view of the Claimant's previous unexcused absences and
warnings. The Claimant had been previously warned, on several occasions,
that such conduct was not acceptable and would not be excused.
After reviewing the record in this case, this Board finds that the
Claimant was properly assessed a thirty-day deferred suspension for absenting
himself from work without permission.
Incarceration does not constitute an unavoidable absence from work. (See
Second Division Awards 7777 and 8315.) Here, the Claimant's own actions
resulted in his confinement. As pointed out in Third Division Award 6572:
"The argument is made that since claimant was in jail and was
denied the use of a telephone, no infraction of Rule 60(b), which
provides that an employee unable to report for duty will immediately
notify his supervisor, is shown because he did not telephone as
soon as conditions permitted. But the Rule is stripped of practically all meaning if personal fault is as much of an excuse for
inability to report as conditions over which the employee has no
control."
This Division has frequently held that incarceration does not constitute
an unavoidable absence from work. (See Awards 1508, 4689, and 6606.) Under
the circumstances of this case, this Board finds the Claimant's thirty-day
deferred suspension to be fully justified. As a matter of fact, the Claimant
did call his wife, and he could have called his job.
Form 1
Page 3
Claim denied.
ATTEST:
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Award No. 1064 3
Docket No. 10721
2-MP-MA-'85
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy J.
Executive Secretary
Dated at Chicago, Illinois, this 30th day of October 1985.