It is the position of the Organization that the Carrier erred in dismissing the Claimant. It argued that the Claimant had a right not to appear for work on April 1, 2007, because he made an arrangement with the Carrier to serve that date as the first day of a ten day agreed to suspension. Secondly, it argued that the Claimant was denied A.gareement 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. It further argued that the Investigation should have been postponed until after the Claimant returned from furlough. Therefore, it concluded that the discipline should be set aside and the claim sustained 9s Present
The Carrier argued that there is no validity to the Organization's arguments. It submits that the Claimant is guilty as charged and there were no procedural errors in the handling his case. It argued that the Hearing was postponed twice pursuant to the Claimant's request and was not postponed on May II, 2007 because there was no request by the Claimant for a third postponement. Nor did he subsequently offer any explanation as to why he could not have attended the Hearing. In summation it stated the dismissal was appropriate and should not be disturbed.
The Board reviewed the transcript and record evidence which constituted the third in a series of three cases involving the Claimant and discovered that he again chose not to appear at the Investigation just as he did in Second Division Award 13989 and again he offered no subsequent proof that he could not attend the Hearing. As we previously stated in the aforementioned Award the Carrier did not violate the Claimant's right to a fair and impartial Hearing when it was held in absentia because the record substantiates that the Carrier granted two postponements and there was no request by the Claimant for a third postponement of the May 11, 2007 Hearing which was recessed for 15 minutes to allow the Claimant time to appear at the Hearing in the event that he was late. As previously stated in Second Division Awards 13957 and 13989 involving these same parties:
The Board, having determined that the Claimant was not denied his Agreement due process rights, next turns its attention to the merits. Our review of tlile transcript fndi5?tpc that an SfatCTl 29, =7; Mechanical ~IEast 1~11~1711t~nd~nt Mayo faxed a letter to the Mechanical Department office in Rigby for the Claimant to sign. The letter advised the Claimant that there would be a postponement to their agreed-to-discipline and he should report to work on April 1, 2007. The Claimant's immediate Supervisor (Baker) read the letter to the Claimant who refused to sign for receipt of iE. In conjwrNoa with that refusal to acknowledge receipt of the Ietter, Baker tested that the Claimant stated:
Baker further testified that the Claimant was vicious, quarrelsome and uncivil in his deportment. He also stated that Carman D. Reynolds was a witness to the conversation.
Carman Reynolds testified that he did not hear the entire conversation, but he did hear Baker instruct the Claimant to report to work on April 1. He further suggested that the Claimant's response was to the effect that he had no intention of complying with the Carrier's order.
The record substantiates that at the time of the incident, Superintendent Mayo explained to Mechanical Supervisor Baker that he should inform the Claimant that the March 27, 2007 letter (Agreement between the Claimant and the Carrier to a ten day suspension) was an acceptance of responsibility and waiver of a Hearing and the Carrier had the right to reassign the dates when the discipline would be served and the Claimant was expected to be at work on April 1, 2007. The record also confirms that Baker advised the Claimant of the Superintendent's instructions. Unfortunately, because the Claimant elected not to attend the Investigation the evidence that was presented by the Carrier, which was substantial, stands un-refuted. The Organization's vigorous effort to defend the Claimant at the Hearing without his assistance simply could not overcome the un-refuted testimony Form 1 Award No. 13990
of the Carrier's witnesses. The Board determined that the Claimant's behavior was not appropriate. It is clear that the Carrier met its burden of proof that the Claimant was guilty as charged. The Claimant would have been wise to have followed the old adage "obey now and grieve later."
The only issue remaining is whether the dismissal was jOur review of the Claimant's personnel record shows that the Claimant accepted a three day suspension for excessive absenteeism on August 5, 2005, a ten day suspension for another period of excessive absenteeism on March 27, 2007, and was found guilty of exhibiting a discernable pattern of absences for which he was suspended for 30 days on May 21, 2007. It is clear that the Carrier attempted to use progressive disciple to alter the Claimant's behavior to no avail. The Claimant was insubordinate, quarrelsome and uncivil in his deportment in the instant case when he failed to follow a direct order. Therefore, the Board finds and holds that termination was appropriate because 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.