Form 1
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 11887
Docket No. 11855
90-2-89-2-156
The Second Division consisted of the regular members and in
addition Referee William 0. Hearn when award was rendered.
(International Brotherhood of Firemen and Oilers
(Chicago and North Western Transportation Company
1. That in violation of the current Agreement, Laborer J. Bly,
Marshalltown, Iowa, was unfairly dismissed from service of the Chicago and
Northwestern Transportation Company, effective October 3, 1988.
2. That accordingly, the Chicago and Northwestern Transportation
Company be ordered to make Mr. Bly whole by restoring him to service with
seniority rights, vacation rights and all other benefits that are a condition
of employment, unimpaired, with compensation for all lost time plus 6% annual
interest; with reimbursement of all losses sustained account loss of coverage
under Health and Welfare and Life Insurance Agreements during the time held
out of service; and the mark removed from 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 waived right of appearance at hearing thereon.
On September 2, 1988, Claimant was notified to appear for a formal
Investigation on September 7, 1988, charged with:
"Your responsibility for excessive absenteeism
while employed as a Laborer, first shift, 7:00
A.M. to 3:00 P.M. at the Marshalltown Diesel
Shop. Your absenteeism became excessive when
you were again absent on August 29, 1988. ***"
Form 1 Award No. 11887
Page 2 Docket No. 11855
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At Claimant's request the Investigation was postponed until September
23, 1988.
The Investigation began at 10:06 A.M. on September 23, 1988, however
Claimant was not present. Claimant's Local Chairman was present and stated in
the Hearing.
"I would like to object to this investigation
account of Mr. Bly cannot be here today."
Q. You have no notice of why Mr. Bly could not
be here.
A. No I don't.
Q. Well if you have no other objections, we
will continue with the investigation.
A. Okay."
Carrier's Shop Manager testified that Claimant on September 22, 1988,
requested another postponement in order he said to obtain representation. Carrier's Assistant Division Manager Mechanical in Boone, Iowa, in the Division
Headquarters, was contacted and his advice was that Claimant had already had
one postponement for the purpose of obtaining representation, and the Carrier
is unaware of any efforts on the Claimant's behalf to obtain that representation. His request was refused.
The Hearing Officer then asked the Local Chairman the following question.
"Q. Mr. Hinmon did Mr. Bly contact you for a
postponement?
A. No contact with Mr. Bly since the first
postponement."
Therefore Claimant's duly authorized representative was present.
Claimant chose to stay away at his own risk.
On July 5, 1988, Claimant was given a letter by the Shop Manager from
the Assistant Division Mechanical, which stated:
"In reviewing both your personal record and
attendance record, I find you have an inordinate
number of absences attributed to personal illness. Your alleged health problems have resulted in discussion with your immediate supervisor, as well as with Shop Manager, Tad
Volkman. On April 8, 1988, you received a
Form 1 Award No. 11887
Page 3 Docket No. 11855
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letter from Assistant Vice President and Division Manager, Mr. G. F. Maybee, placing you in
the Discipline System for excessive absenteeism.
To date, you have shown a deterioration in your
attendance record, rather than the improvement I
would have expected. Because of your alleged
health problems and your lack of improvement it
will now be necessary for you, when absenting
yourself in the future, to personally contact
either Tad Volkman, Shop Manager, A. C.
Steinhebel, General Foreman, or W. G. Bachman,
General Foreman, within one (1) hour of your
starting time. At any time your absence is due
to personal illness, it will be necessary for
you to obtain substantiated proof from a qualified person detailing the nature of your medical
problem and the treatment you received."
There is no question that Claimant was absent on August 29, 1988.
He called the Foreman at 6:15 A.M., August 29, 1988, and reported off because
he had a flat tire. The record shows that Claimant lived in walking distance
of the Shop. The Shop Manager asked Claimant didn't he have a spare tire.
Claimant wouldn't answer him.
On October 1, 1987, the Equipment Management Department put into
effect an absenteeism policy. Claimant was familiar with this policy. The
record reveals that the Carrier complied with the policy in their dealings
with the Claimant.
The Organization's contention is that Carrier was in violation of
Rule 21 of the current Agreement in that Claimant was not notified in writing
of the precise charge. Their contention being that his absentee record back
to October 1, 1987, was entered into the record.
We agree with the language in Award 68 of Public Law Board 3166,
reading in part:
"The charge of excessive absenteeism inherently
connotes that the Carrier must review Claimant's
attendance over a reasonable period of time to
determine if he has been absent an abnormal
number of days. In the notice of charges, the.
Carrier need not enumerate each absence. NRAB
Second Division Award No. 9480 (Doering).
Therefore, the investigation is not limited to
the triggering absence but the Carrier properly
inquired into Claimant's attendance record over
a reasonable period of time."
Form 1 Award No.- 11887
Page 4 Docket No. 11855
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It is the opinion of this Board that Claimant was well represented by
his Organization and that Carrier had given Claimant every opportunity to improve his attendance record but he made no attempt to do so.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ..
Nancy J. ~ - Executive Secretary
Dated at Chicago, Illinois, this 27th day of June 1990.