Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11918
SECOND DIVISION Docket No. 11848
90-2-89-2-161
The Second Division consisted of the regular members and in
addition Referee Donald E. Prover when award was rendered.
(Brotherhood Railway Carmen/ A Division of TCU
PARTIES TO DISPUTE:
(Northeast Illinois Regional Commuter Railroad
( Corporation
STATEMENT OF CLAIM:
1. That the Northeast Illinois Railroad Corporation be ordered to
compensate Coach Cleaner Carl E. Huff for the ten (10) days suspension Coach
Cleaner Carl Huff was unjustly assessed.
2. That the Northeast Illinois Railroad Corporation be ordered to
compensate Coach Cleaner Carl Huff for all benefits which he may have lost and
which are a condition of employment, such as health, welfare, insurance, vacation, paid holidays, full seniority; and we also request interest at the lOX
rate per annum for any compensation he may receive.
3. That the Northeast Illinois Railroad Corporation shall be ordered
to cease their violation of the Agreement effective October 1, 1986, with
their use of Division Manager's Notice No 21 in place of proper Agreement Rule
14.
4. That the Carrier's use of their unilateral Division Manager's
Notice No 21 renders the hearing procedurally defective and that the claim
must be paid as presented.
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 was regularly assigned as a Coach Cleaner, Monday through
Friday, with hours of 8:00 A.M. to 4:00 P.M. On September 27, 1988, the
Claimant did not report at 8:00 A.M. At about 3:32 P.M. he called in and
stated he had fallen asleep after taking some medication at 7:00 A.M. and had
not awakened until the afternoon. On September 29, 1988 the Claimant reported
for work at 9:40 A.M.; allegedly due to attending a funeral.
Form 1 Award No. 11918
Page 2 Docket No. 11848
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As the result of a formal Hearing on October 5, 1988 the Claimant was
assessed a five-day actual suspension which activated a previously assessed
five-day deferred suspension or a total of 10 actual days suspension..
We have reviewed the transcript of the Hearing and find that it was
conducted in a fair and impartial manner.
The Employees do not dispute that the Claimant was absent on September 27 and tardy on September 29. They argue that the Claimant complied with
Rule 14 in that he notified "the Carrier as early as possible." Rule 14
reads, as follows:
"In case an employee is unavoidably kept from work
he will not be discriminated against. An employee
detained from work on account of sickness or any
other good cause shall notify the Carrier as early
as possible."
The Employees argument in this case is not well founded. The Claimant indicated at the Hearing that he took pain pills on September 27 at 7:00
A.M. that made him drowsy and made him go to sleep. The pain pills were a
prescription. If they were the type that would make an individual drowsy and
sleepy (in the Claimant's case allegedly causing him to sleep for eight hours)
there would have been a warning on the label to that effect. The Claimant
should have been forewarned at 7:00 A.M. that if he took the pills that it was
highly unlikely that he would be able to drive or to be at work at 8:00 A.M.
The Claimant stated at the Hearing that he knew on September 28 that he was
going to a funeral on September 29, however, he gave no good reason at the
Hearing for not calling and advising Carrier that he would not be at work at
8:00 A.M. on September 29.
The Employees also argue that it was improper for the Carrier to use
Division Manager's Notice No. 21 dated January 12, 1988, and Rule Q. See
Second Division Award 11919, where we upheld Carrier's use of Notice No. 21 in
a similar case involving the same individual. Rule Q, an Employee Conduct
Rule, contains the following language: "Employees must report at the appointed time." Rule 14 reads in part, as follows:
"An employee detained from work on account of sickness
or for any other good cause shall notify the Carrier as
early as possible."
We find no conflict between Rule 14 and Rule Q. We believe that even
where there is no written Rule it is still implied in any employment relationship that, unless advised otherwise, an employee is expected to report on
time. When, for good cause, he cannot report on time he should notify the
Carrier as early as possible. See Award 3 of PLB No. 4882.
It is our conclusion that the Claimant's failure to call in as required by Notice No. 21 was brought on by his own actions; he should have
known when he took the pain pills that the likelihood of his being to work on
time on September 27 was practically nil. While the Claimant knew a day ahead
he was going to a funeral on September 29 he did not call but reported to work
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90-2-89-2-161
at 9:40 A.M. one hour and forty minutes late. We find that the Carrier has
met the necessary burden of proof in this case and that the Claimant was
guilty as charged. In addition we find that he did not comply with Rule 14.
The Claimant's service record shows that Carrier had previously held conferences with him and had written him letters regarding his absenteeism. The
five-day deferred suspension, which was activated by the discipline assessed
in this case, pertained to absenteeism by the Claimant in August 1988. Accordingly we find no reason to disturb the discipline assessed in this case.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
Nancy J. e - Executive Secretary
Dated at Chicago, Illinois, this 1st day of August 1990.