Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10786
SECOND DIVISION Docket No. 10848
2-NIRC-CM-186
The Second Division consisted of the regular members and in
addition Referee Leonard K. Hall when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Northeast Illinois Regional Commuter Railroad Corporation
Dispute: Claim of Employes:
1. That the NIRCRC violated the current Agreement Rule 34(g), when
as a result of a hearing held on February 8, 1984 assessed Coach Cleaner B. J.
Means with a five (5) day actual suspension from service beginning March 5,
1984 through and including March 9, 1984.
2. That the NIRCRC be ordered to compensate Coach Cleaner B. J.
Means in the amount of eight (8) hours pay for each of the five (5) days that
he was unjustly suspended from service beginning March 5, 1984 thru March 9,
1984.
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.
The Transcript of the Investigation in this dispute simply shows,
excluding the redundant positioning at the Investigation by the Claimant's
Representative that the notices of postponement (each of two postponements
requested by the representative) did not read as precisely as the initial
notice stating the charge, that the Claimant was absent from his assignment on
specified days.
He was regularly assigned 8 A.M. to 4 P.M., rest days Saturday and
Sunday, in the Carrier's Western Avenue Coach Yard and scheduled to work on
December 30, 1983, January 3, 4 and 5, 1984 but he did not do so.
On December 30 he called in at 7:30 A.M. and told the Relief Foreman
that he would not be in. When asked the reason, he said he had car trouble
and that he was "going to insurance." The Claimant later testified that his
absence that day was due to discovery at 9:45 P.M. on December 29 that his car
had been stolen and recovered at about 10:00 P.M. or a little after, found it
to be damaged but drove it to the police station.
a
Form 1 Award No. 10786'
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2-NIRC-CM-'86
During the morning of January 3, the Claimant called in to the
Assistant Foreman, said he would not be in because someone had hit his car and
that he had a problem with it.
Later in the day the Claimant called in and again said he would not
be in-to work on the 4th and the 5th for on the 4th he had to go to the police
and on the 5th he had to go to his insurance company.
The Claimant testified that he missed the 4th because "there is only
one member in my household and that's me and I had to take care of it myself."
His response for being absent on January 5th was: "The reason is the same."
When asked if he could have taken public transportation to work when
he realized that he was having difficulty in placing his car in the shop, he
answered "yes", but added: "That is the reason I took off, because I had to
take public transportation. Like I said, I took off to put my car in the
garage and I had to do all the work myself." The Claimant.further testified
that he took his automobile to the repair shop on January 6 after his shift
ended on that date.
In the ensuing testimony, the Claimant admitted that he had a responsibility to the Company to protect his assignment and that doing so was
among his highest priorities.
Following the initial testimony of the Claimant, General Rule 1 of
the governing Schedule Agreement between the parties was read into the record
by the Claimant at the request of the Investigating Officer. Essentially, the
Rule provides that eight hours shall be the regular work day and that forty
hours shall be the regular work week.
The Claimant's Representative objected and contended that Rule 23 of
the Agreement should have been read into the record by the Claimant. It was
quoted by the representative. It reads:
"An employe detained from work on account of
sickness or for any other good cause, shall notify
his foreman as early as possible."
The Notice instructing the Claimant to attend Investigation reads in
pertinent part:
"CHARGE: Your alleged failure to protect your
assignment in December, 1983 and January,
1984 on the following days:
December 30, 1983 - Friday
January 3, 1984 - Tuesday
January 4, 1984 - Wednesday
January 5, 1984 - Thursday
Form 1 Award No. 10786
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2-NIRC-CM-'86
The Notice of Discipline dated February 27, 1984 reads:
"Full consideration has been given to the testimony
developed at the formal hearing held on February 8,
1984 in Mr. Thomas' office at the Western Avenue
Coach Yard in connection with the charges of which
you were advised in notice dated January 1, 1984.
As a result of your failure to protect your assign
ment on December 30, 1983, January 3, 1984, January
4, 1984, and January 5, 1984, please be advised as
follows:
Accordingly, you are accessed (sic) with a 5-day
actual suspension beginning Monday, March 5, 1984.
You are to return to work on March 12, 1984."
The Organization has based its position on three points; i.e., that
the Notice of Investigation did not contain a precise charge; the Carrier did
not meet its burden of proof and that the discipline assessed was excessive.
The Board finds that the Notice was sufficiently precise as to afford
the Claimant and his Representative the opportunity to prepare an adequate
defense on his behalf.
While the contention that the Claimant did not receive a precise
charge was discussed on the property, a through review of the on-the-property
correspondence does not disclose any showing that the burden-of-proof
contention was. It makes its first appearance in the Organization's written
submission to the Board. The contention and argument in support thereof comes
too late for this Board to properly give it further consideration.
We do note that the Organization charges that the Claimant had been
unfairly suspended and that he had not been justly dealt with, arguing that he
notified the Carrier that he would be unable to protect his assignment, that
the Supervisors did not state that the reasons he gave were not acceptable and
that he had never been counseled about his being absent from work.
The Transcript of the Hearing process shows that the Foreman with
whom he talked in the afternoon of January 3 told him that when he came back
to' be sure to bring a good excuse for being absent. The Foreman testified
that the Claimant said "okay." When an employe calls in and said he was not
going to be in, there appears that the Foreman had little recourse except to
respond as the Foreman in this instance did. It then becomes incumbent upon
the employe to bring in a good reason. In this instance, it is obvious that
the Carrier's Officer assessing the five-day suspension considered the
explanations offered by the Claimant as not being acceptable. The employer
has the right to expect every employe to report for work and work all of the
scheduled hours on every regularly scheduled work day.
Form 1 Award No. 10786
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We do not consider the discipline assessed as punishment as asserted
by the petitioner, nor do we consider that counseling about his being absent
was required if this were in fact the first occurrence. The suspension
involves some degree of force or outward influence to make the Claimant
conscious of his shortcomings in this instance and hopefully deter him from
repeating his mistake.
The evaluation of the witnesses and their testimony as well as the
Claimant recognizing his responsibility by the Officer duly designated to
assess discipline will not be disturbed.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 19th day of March 1986.