Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12159
SECOND DIVISION Docket No. 11947
91-2-90-2-63
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo when award was rendered.
(International Brotherhood of Firemen and Oilers
PARTIES TO DISPUTE
:
(CSX Transportation, Inc.
STATEMENT OF CLAIM
:
1. That under the current and controlling Agreement, Service Attendant S. A. Tyus, I. D. No. 184730, was unjustly suspended from service on March
6, 1989 by Mr. J. L. Gant, Mechanical Superintendent, after an investigation
was conducted by Mr. T. D. Burns, Assistant Terminal Trainmaster on February
8, 1989.
2. That accordingly, Service Attendant S. A. Tyus be compensated
for the thirty (30) work days falling between March 6, 1989 and April 14,
1989, both dates inclusive, and his personal record expunged of any reference
to this suspension from service.
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 8, 1989, the Claimant was assessed a thirty day actual suspension for violation of Rule 7 of the
Rules and Regulations of the Mechanical Department of the former Seaboard
System Railroad. The charge was based on the Claimant's attendance record
which showed he had been absent on a total of 48 days during the six months
from August 1988, through January 1989. These absences constituted an absenteeism rate of about 37%.
The Organization raises a procedural argument which we find to be
without merit. The Organization claims that error was committed in that the
charges Claimant faced on February 8, 1989, clearly specified alleged violations on dates ranging from August 2, 1988, through January 19, 1989, a time
span of some six months. As such, the Organization charges that the six-month
time span is well beyond the ten day time limit specified in the Agreement, as
amended effective April 1, 1985.
Form 1 Award No. 12159
Page 2 Docket No. 11947
91-2-90-2-63
This Board rejects the organization's argument that the Carrier
should not have considered the Claimant's attendance record for the period
prior to the ten days immediately preceding the date of the charge letter.
This Board has held on numerous occasions that if the Organization's position
was sustained, excessive absenteeism could never be the subject of an Investigation and that this was obviously not the intent of the parties. The three
days of absences which occurred during the ten days prior to the charge letter
brought the Claimant's attendance record to the point of excessiveness. Once
the Carrier determined that the Claimant's absenteeism was excessive, it acted
expeditiously in issuing the charge letter. The charge letter was specific
and afforded the Claimant and his Representative the opportunity to prepare a
defense to the charges. Further, the nature of the charges (an established
pattern of chronic and repeated absenteeism) dictated that the various dates
be stated in the charge letter. The Board notes that the charge dates included four dates within the ten days preceding the charge and thus the Carrier
was within its rights to base the charge on the entire period. As such, the
Claimant and the Organization were afforded all Agreement due process rights.
This Board addressed the same issue in Second Division Award 11393:
"Third, the Organization contends that the Carrier improperly
cited dates of alleged infraction beyond the ten day limit
found in Section B of the Memorandum of Agreement. However,
the charge in this case (chronic and repeated absenteeism)
is, by its nature, a violation requiring the examination of a
substantial period of time and we find nothing in the record
to demonstrate that the Carrier unduly delayed bringing the
charges."
Regarding the Claimant's absences, the evidence presented at the
Investigation showed conclusively that he was absent on 48 occasions during
the six month period and that the Claimant was absent "no report" on 25 of
those 48 occasions. Further, the Claimant presented no doctor's excuses or
other documentation for his absences.
This Board has explained on numerous occasions the importance of
regular attendance and a Carrier's right to assess discipline when employees
do not meet this obligation. Every employer is entitled to expect that the
job it provides an employee will be filled on a daily basis. Even where a
Claimant provides the Carrier with notice of pending absences, the result does
not change - that being that the work expected to be performed is not performed or is performed at premium cost to the Carrier. This Claimant has been
afforded the benefits of Agreement due process and progressive discipline.
The Claimant's record indicates that he has previously been issued two warning
letters and assessed a twenty day actual suspension for excessive absenteeism.
It is obvious to the Board that the previous discipline issued to the Claimant
did not have its intended corrective effect. Therefore, we must deny the
Claim.
A W A R D
Claim denied.
Form 1 Award No. 12159
Page 3 Docket No. 11947
91-2-90-2-63
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: - .-
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois this 9th day of October 1991.