The facts of the case are that on May 11, 2007, the Carrier held a formal investigation in which it was alleged that the Claimant had a discernible pattern of absences occurring either the day before or the day after his rest days which included five days for November and December 2006 and January 2007. Subsequently the Claimant was assessed a 30-day suspension for his alleged actions.
It is the Organization's position that the Carrier did not prove a discernable pattern of absences and tire charges were based upon false props. It argued that the Claimant's illness may have occurred before some rest days, but there is no proof that Claimant was not IU, or that he had any intention to extend his rest day period. Additionally, it argued that the Claimant was denied Agreement due process because the Investigation was held in his absence while he was working outside of the railroad. industry account of being furloughed from the Carrier's service. Therefore, it argued that the discipline should be reversed and the claim sustained as presented.
It is the position of the Carrier that a review of the Claimant's work record established a discernible pattern of marking off preceding his rest days. At the Hearing, the Carrier presented copies of mark-off-slips evidencing six absences in question. Mechanical East Superintendent Mayo explained under questioning that the Claimant left work early on two occasions before his scheduled rest days. On three other occasions, he marked off sick for the entire day before his assigned rest days. In addition, the Claimant was a "no show" on the day after his assigned rest days, in direct contradiction to a letter of instruction dated March 29, 2007. Superintendent Mayo further testified:
The Carrier concluded by arguing that the Claimant was guilty as charged and the discipline should not be disturbed. Form 1 Award No, 13989
The Board reviewed the transcript and record evidence which constituted the second of three cases involving the Claimant and discovered that he chose not to appear at the Investigation and offered no subsequent proof that he could not attend the Hearing. The Carrier did not violate his right to a fair and impartial Hearing is this instance when it was held in absentia. The record indicates that the Carrier granted two postponements and there was no request by the Claimant for a third postponement of the May 11, 2007 Hearing. As previously stated in Second Division Award 13957 involving these same parties:
Turning to the merits the Board fords that alt of the Claimant's absences between November 1, 2006 and January 24, ?.007, occurred in conjunction with his rest days. Because the Claimant elected not to attend the Investigation the evidence that was presented by the Carrier, which was substantial, stands un-refuted. Therefore, the Board fords and holds that the 30-day suspension was appropriate. It was not arbitrary, excessive or capricious.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made. Form 1 Award No. 13989