Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10907
SECOND DIVISION Docket No. 10403
2-MNCR-EW-'86
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Metro-North Commuter Railroad
Dispute: Claim of Employes:
1. That under the current Agreement, the Consolidated Rail Corporation (Conrail) unjustly dismissed Electrician S. R. Jackson from service
effective November 2, 1982.
2. That accordingly, the Metro-North Commuter Railroad be ordered to
restore Electrician S. R. Jackson to service with seniority unimpaired and
with all pay due him from the first day he was held out of service until the
day he is returned to service, at the applicable Electrician's rate of pay for
each day he has been improperly held from service; and with all benefits due
him under the group hospital and life insurance policies for the aforementioned period; and all railroad retirement benefits due him, including unemployment and sickness benefits for the aforementioned period; and all vacation
and holiday benefits due him under the current vacation and holiday agreements
for the aforementioned period; and all other benefits that would normally have
accrued to him had he been working in the aforementioned period order to make
him whole; and expunge his record.
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 were given due notice of hearing thereon.
The Claimant was employed by the Carrier as an Electrician at its
facility located at Grand Central Station, New York. Following a Trial that
was held on October 28, 1982 the Claimant was dismissed from service for the
following reasons: 1) his failure to report for duty on July 23, 24, 25, 28,
29, 30, 31, August 1, 4, 5, 6, 1.982 which in light of his previous record
constitutes excessive absenteeism; and 2) his failure to mark off properly on
July 23, 24, and 25, 1982.
Form 1 Award No. 10907
Page 2 Docket No. 10403
2-MNCR-EW-'86
Before considering the merits of the instant dispute, the organization contends that the Claimant was deprived of a fair and impartial trial
in violation of Rule 6-A-1(a) because at the Trial the Conducting Officer
called the Claimant to be a witness against himself. According to the
Organization, the burden of proving the offense upon which the disciplinary
penalty is based was improperly shifted from the Carrier to the Claimant.
In light of the offenses by the Carrier to have been committed by the
Claimant, namely, excessive absenteeism and failure to mark off properly,
leads this Board to conclude that the Claimant was not deprived of a fair and
impartial Trial as required by Rule 6-A-1(a). The Claimant was called by the
Conducting Officer at the Trial to provide testimony as to whether he was
absent and failed to properly mark off on the dates referred to in the
charges. Obviously, the dates were known to the Carrier and set forth in
their records. Indeed, there was no factual dispute over whether the Claimant
was absent and failed to properly report off on the specific dates in July and
August, 1982. The Grievant was not prejudiced by answering "yes" and "no" to
whether he was absent and whether he properly marked off on the dates in
question. Moreover, it is fundamental that an employee is obligated to furnish the reasons why he has been absent from work. That the Claimant furnished such testimony at the request of the Conducting Officer did not impair
his right to a fair and impartial Trial. Thus, given the offenses in question, the Claimant was not deprived of due process when at the request of the
Conducting Officer he furnished testimony on his absenteeism and failure to
properly mark off.
Turning to the merits of the dispute between the parties, the
Claimant was absent from work between July 23 and August 6, 1982, and failed
to mark off properly on July 23, 24, and 25, 1982. The Claimant's absence
from work and failure to mark off properly was caused by his arrest and
incarceration due to "legal problems". On August 10, 1982, the Claimant's
case "was finally dropped". In Second Division Award No. 7842, the following
was stated:
"This Board has long held that institutional
confinement will not excuse an unavoidable
absence since it is incumbent upon employees
to meet their employment obligations."
Clearly, the Claimant failed to meet his employment obligations
between July 23 and August 6, 1982. The Claimant indicated that during his
incarceration, the only person he "made contact with was [his] sister". He
went on to say that he instructed his sister to notify the Carrier of his
absence but she apparently failed to do so. The Carrier was first apprised of
the Claimant's incarceration on July 28, 1982 when R. Lombardi, the Organization's Representative notified the Company. Lombardi was trying to locate
the Claimant after his absence of three (3) days from work, and came upon this
information after calling the Claimant's wife. In any event, on July 23, 24
and 25 the Claimant who was "unable to report for work or detained from work
for any cause", failed to notify his shop or work location "as soon as
possible", which is required under Rule 8-H-2. (Emphasis added).
Form 1 Award No. 10907
Page 3 Docket No. 10403
2-MNCR-EW-'86
The Claimant entered the service of the Carrier on January 8, 1982.
Thus the Claimant's failure to report for duty between July 23 and August 6,
1982 and his failure to mark off properly on July 23, 24 and 25, 1982, roughly
seven (7) months after entering the service of the Carrier constitute just
cause for discharge.
The Claimant was disciplined for offenses which occurred subsequent
to July and August, 1982. On September 29, 1982 the Claimant was given a
fifteen (15) day disciplinary suspension for "Excessive Absenteeism and
Failure to Mark Off Properly"; on October 4, 1982 he received a thirty (30)
day disciplinary suspension for "Assuming An Attitude of Sleep; and on November 2, 1982, the Claimant was given a sixty (60) day disciplinary suspension
for "Absenting Yourself from Your Work Location". Such conduct cannot be
given any weight with regard to the instant case, even though these offenses
could be characterized to be of a continuous nature. There is nothing in the
charges which covers these offenses committed by the Claimant since August 6,
1982 and it would be highly improper in this case to give them any weight.
Nevertheless the Grievant's absenteeism from July 23 thru August 6, 1982 combined with his failure to mark off properly on July 23, 24 and 25, 1982
roughly seven (7) months after he joined the service of the Carrier constitutes just cause for discharge.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ZArt!~
Nancy Jeer- Executive Secretary
Dated at Chicago, Illinois, this 9th day of July 1986.