Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10668
SECOND DIVISION Docket No. 10351
2-D&RGW-MA-'85
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( The Denver and Rio Grande Western Railroad Company
Dispute: Claim of Employes:
1. That the Carrier improperly held Machinist A. J. Alcorn (hereinafter
referred to as Claimant) from performing service on January 18,
1982.
2. That, accordingly, the Carrier be ordered to compensate Claimant
eight (8) hours at the current Machinist rate.
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.
On January IS, 1983, Claimant contacted the Carrier to inform that he
would not be reporting for work that day. According to him, he advised that
he would be reporting in the next work day. The Carrier denied that it was
informed about the next work day. The Claimant did report to work on the
next work day, Monday, but the Carrier refused him permission to work and he
was sent away for the day without pay.
The relevant rule concerning absences is Rule 19 of the current agreement
which reads:
"(a) An employe desiring to remain away from service must
obtain permission from his foreman to do so but if sickness, or other unavoidable cause, prevents him from reporting at his regular post of duty, he shall notify the foreman
as promptly as possible. Failure to do so places employe
liable to discipline.
Form 1 Award No. 10668
Page 2 Docket No. 10351
2-D&RGW-MA-'85
"(b) An employe who has been absent from duty for any
cause shall notify his foreman of his intention to return
to work before the end of his regular shift on preceding
days."
The Organization also contends that Rule 32, the disciplinary rule, is
relevant in that it views the Carrier's action as discipline administered
without an
investigation. That
rule reads:
"(a) An employe who has been in the service more than
sixty (60) days, or whose application for service has
been formally approved, (employes to be notified of such
approval) shall not be disciplined or dismissed without
an investigation."
Much of the Submission of both parties
concerns whether
or not the
Claimant notified the Carrier of his intention to return to work as per Rule
19(b). This part of the arguments is misguided. The Organization focused on
the correct issue when it raised the lack of disciplinary hearing.
The Carrier's intention is stated on a Notice of Absenteeism issued to
the Claimant. On the side of the notice are the statements that "Mr. Alcorn
did not state his intention to return to assigned shift on Monday morning Jan
18 as claimed. He was absent three times in January and was sent home Jan
18th as per Mr. McCurdy's instructions to correct absenteeism and tardiness." In the Carrier's Submission it states that "In view of the fact
that the parties provided in their Agreement Rule 19(b) that an employe who
has been absent for any reason should inform his foreman of his
intent to
return to work before the end of his regular shift on the preceding day,
Carrier's action in withholding Claimant from work for failing to so notify
his foreman is not a disciplinary matter but rather it was compliance with
Rule 19(b). "
In fact, Claimant was given a one day suspension for his absence. There
is nothing in Rule 19(b) that allows the Carrier to ignore the mandates of
Rule 32 when it administers discipline. The fact that there is dispute
between the parties as to whether or not Claimant met his duty Rule 19(b)
highlights the fact that an investigation aimed at developing relevant facts
is necessary. The Carrier was in contractual error in its action.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of December 1985.