Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10704
SECOND DIVISION Docket No. 10748
2-SSR-MA-185
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:
( Seaboard System Railroad
Dispute: Claim of Employes:
1. That the Seaboard System (formerly Seaboard Coast Line) violated
the applicable January 1, 1968 Agreement, particularly Rule 32, but
not limited thereto, between the Carrier and the International
Association of Machinists & Aerospace Workers when it unjustly
suspended Machinist H. W. Brigman from the service for a period of
ten (10) consecutive work days beginning October 5, 1983, account
allegedly being absent without permission and excessive absenteeism.
2. That accordingly, Carrier be ordered to compensate Machinist
Brigman for all wages lost at the Machinists pro rata rate as
result of his suspension from the service, make claimant whole for
any other pay or benefits lost and clear his service record of all
reference to the instant dispute.
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, Machinist H. W. Brigman, is employed by the Carrier, Seaboard
System Railroad, at its Waycross, Georgia, shop.
A formal investigation was conducted on July 28, 1983, into charges that
the Claimant was excessively absent from work and was absent from his assignment without permission from April 15, 1983, to July 6, 1983. As a result,
the Claimant received a ten-day suspension. The Organization thereafter
filed a claim on the Claimant's behalf.
Form 1 Award No. 10704
Page 2 Docket No. 10748
2-SSR-MA-185
The Organization contends that the Carrier violated Rule 32 of the
controlling Agreement when it unjustly suspended the Claimant. Rule 32
provides in part:
"No employee shall be disciplined without a fair hearing
by a designated officer of the Company ....At a reasonable
time prior to the hearing such employee and the local
chairman will be apprised in writing of the precise
charge against him. The employee shall have reasonable
opportunity to secure the presence of necessary witnesses
and be represented by the duly authorized representative..."
Specifically, the organization argues that the Carrier did not prove the
charges against the Claimant. The Claimant was not found guilty of absence
without permission on any specific date; there was no evidence that the
Claimant was absent without permission or justification on any specific date
or at any time. The remaining "excessive absenteeism" charge is not a
precise charge, as required by Rule 32. The Organization further points out
that the Claimant should not be required to prove his innocence because the
Carrier did not introduce any testimony or evidence showing the Claimant's
guilt.
The Organization also argues that the Carrier ignored pertinent rules
included in the Agreement, which control in this dispute. Certain material
that the Carrier included in the Claimant's personal record should not be
used to corroborate its findings during the investigation because the
material was not subject to cross-examination or verification. Also, the
Carrier did not notify the Organization or the Claimant of the reasons that
it disallowed the claim, as is required by Rule 30. Finally, anything that
occurred subsequent to the filing of the charges is irrelevant to the
settling of the charges.
The Organization therefore contends that the Claimant is innocent of
wrongdoing, and that the Carrier's suspension of the Claimant was an abuse of
managerial authority. The Organization asserts that the claim should be
allowed in its entirety; the Claimant should be compensated for all lost
wages, made whole for all lost benefits, and his record cleared of all
references to this dispute.
The Carrier contends that there is no merit to this claim. The Carrier
asserts that it properly processed this claim. The Claimant received a fair
and impartial hearing; the Carrier afforded the Claimant all of his rights
and privileges during the investigation. The Carrier properly declined the
claim as provided in Rule 30, and did not interfere in any way with the
Organization's further processing of the claim.
Form 1 Award No. 10704
Page 3 Docket No. 10748
2-SSR-MA-185
In addition, the Carrier asserts that the record contains substantial
evidence of the Claimant's excessive absenteeism. The Claimant's work record
for the three-year period preceding this dispute establishes his chronic
absenteeism. The Carrier points out that not all of the absences are
justified by medical evidence; in addition, the Claimant's compliance with
Rule 19, by notifying his Foreman of the absences, does not justify chronic
and excessive absenteeism. The Carrier argues that because of the seriousness of the offense, suspension is neither arbitrary nor capricious, but
extremely lenient.
The Carrier contends that it does not employ part-time workers; its
employees must be present on their assigned workdays. Because it has met its
burden of proof, the Carrier asserts that this claim should be denied in its
entirety.
This Board has reviewed all of the evidence and testimony in this case,
and it finds that there is substantial evidence in the record to support the
Carrier's finding that the Claimant was guilty of excessive absenteeism. It
was proven at the hearing that during 1981, the Claimant was absent 152 workdays; during 1982, the Claimant was absent 140 work days; and in 1983, the
Claimant was absent 63 workdays. Those absenteeism rates compute out to 63
percent, 58 percent, and 45 percent, respectively. There is no doubt that
the Claimant was chronically absent.
Although the Claimant contends that he has been i11, it is fundamental
that an employer has a right to expect regularity of attendance from its
employees. This Board has ruled, on numerous occasions, that excessive
absenteeism is a serious offense, and one for which the Carrier may legitimately take disciplinary action up to and including discharge. 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, the
Carrier is entitled to terminate his services."
Also, in Second Division Award 5049, we held:
"Nothing in the agreement obligated the carrier to
attempt to operate its railroad with employees repeatedly
unable or unwilling to work the regular and ordinarily
accepted shifts, whatever reason or excuse exists for
each absence..."
Form 1 Award No. 10704
Page 4 Docket No. 10748
2-SSR-MA-185
Hence, there is no question that the Carrier had the right to take disciplinary
action against the Claimant.
This Board has reviewed all of the procedural objections raised by the
Organization and finds that the hearing was fair, and the Claimant was
afforded all of his rights.
Once this Board determines that there is sufficient evidence to find a
Claimant guilty of a serious rule violation, this Board must then turn its
attention to the discipline imposed by the Carrier. It is fundamental that
this Board will not substitute its judgment for that of a Carrier unless the
Carrier's action is unreasonable, arbitrary, or capricious. This record
demonstrates that the Claimant had been counseled previously for his poor
absenteeism record. Hence, a ten-day suspension after the continual
excessive absenteeism on the part of the Claimant was not unreasonable, and
this Board will not set it aside.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy .;~er - Executive Secretary
Dated at Chicago, Illinois, this 8th day of January 1986.