Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12158
SECOND DIVISION Docket No. 11945
91-2-90-2-60
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo when award was rendered.
(International Association of Machinists and
PARTIES TO DISPUTE: ( Aerospace Workers
(
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
1. That the Chicago and North Western Transportation Company (hereinafter referred to as the "Carrier") violated the provisions of the Joint
Agreement, as amended July 1, 1979, specifically Rule 35, when, subsequent to
an investigation which was neither fair nor impartial, it unjustly and improperly suspended California Avenue Maintenance Facility Machinist V. Perez (hereinafter referred to as the "Claimant") from service for a period of five (5)
days.
2. That accordingly the Carrier compensate Machinist V. Perez for
all wages lost while suspended, additionally, credit Machinist Perez for time
lost for vacation and other benefit rights, and that record of the investigation proceedings, including reference to his unjust discipline, be expunged
from his personal 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.
As a result of an investigation held on February 13, 1989 the Claimant was notified on March 1, 1989 that he was being assessed a five-day suspension for excessive absenteeism and tardiness. At the time, Claimant occupied
a regular Machinist assignment on the first shift at the Carrier's California
Avenue Maintenance Facility in Chicago, Illinois.
The Organization claims that the Carrier failed to properly apprise
Claimant of the charges against. him; that the Carrier violated the expressly
stated time limit provision of Rule 35(c); that the Carrier failed to provide
the Claimant with a fair and impartial investigation; and that the Carrier
failed to sustain the investigation charge with probative evidence.
Form 1 Award No. 12158
Page 2 Docket No. 11945
91-2-90-2-60
The Board notes that attendance for this Carrier is controlled by the
Equipment Management Absentee Policy. This policy defines an occurrence as a
continuous absence resulting from a single illness or single cause. Upon a
certain number of occurrences, an employee is then placed on the formal discipline system. The discipline system provides for a five day suspension
after the employee has received a letter of warning. Under the policy, the
letter of warning is sent only to individuals guilty of "frequent or continued
minor offenses who demonstrate and unwillingness to change." The policy sets
out a plan for reforming good employees through conferences and review and
without discipline. When this does not achieve its corrective goals, a letter
of warning is issued. The letter of warning is followed by a five day suspension.
In response to the Organization's allegations, this Board finds that
a review of the transcript clearly shows that the Claimant was able to provide
testimony for the date of occurrence and further stated that he had had enough
time to prepare. The Board also finds that the Carrier ai" provide Claimant
with ample notice and a review of the transcript reveals that Claimant had a
fair opportunity to defend himself. The record also establishes that the
Carrier conducted interviews with the Claimant, advising him.of the Carrier's
expectation for attendance and discussing the Claimant's plans for improvement. A review of the transcript and of the Claimant's record shows that the
Carrier continually notified the Claimant and reprimanded him for his absenteeism and tardiness. The aforementioned establishes to this Board's satisfaction that the Carrier did not violate the Claimant's procedural due process
.
rights. Further, the Board rejects the Organization's argument that the bur
den was on the Carrier to request documentation from the Claimant regarding
his absences. The Claimant, having knowledge of the Rule and its ramifica
tion, could have presented documentation at the time of his absences. In this
regard, the Claimant was given additional time during the Investigation to
accumulate documentation. The Board agrees with the Carrier that "calling in"
and notifying the Carrier that he will not be reporting to work, does not
relieve the Claimant of culpability for being absent; nor does it satisfy the
requirement of the Carrier's rules for an employee to report to duty. The
intent of requiring an employee to call in is to provide notice to the Carrier
so that the assignment may be protected. In Second Division Award 11874 in
which the same issue and Carrier were involved, this Board held that:
"The Board notes that while Rule 25(e) requires an employee
to notify his supervisor of absences, such compliance does
not excuse those absences. The intent of Rule 25(e) is to
provide notice to the Carrier so that it may protect the
assignment. Further, the absentee policy, being a no-fault
policy, is oblivious to the reasons for an absence. The
record does not provide any evidence to establish a written
rule or agreement or past practice that excludes absence due
to personal illness from the absentee policy. All such
exclusions are listed in paragraph 2 of the policy.
The Board notes that the Organization does not argue that the
Claimant was disciplined inconsistent with the absentee
policy ....
Carrier argues that for whatever reason, Claimant
was excessively absent and that the question of excuse is
irrelevant where an employee can not maintain his regular
attendance."
Form 1 Award No. 12158
Page 3 Docket No. 11945
91-2-90-2-60
It is the opinion of this Board that the Claimant knew or, at the
very least, should have known what was required of him to avoid further discipline. The Board also finds that the Claimant was given sufficient information on which to prepare his defense; that the record establishes that the
Claimant was provided with a fair and impartial hearing; and that the application of this no-fault attendance policy did not violate the stated time limit
provision of Rule 35(c) of the July 1, 1979 Memorandum of Agreement.
Based on the foregoing, the Board agrees with the findings of the
hearing officer and the claim is denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
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Nancy J. p Wr - Executive Secretary
Dated at Chicago, Illinois this 9th day of October 1991.