PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES




STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5328) that:






OPINION OF BOARD: Claimant entered the service of Carrier as an extra trucker on August 7, 1952. On September 27 and 28, 1961, he was employed as Extra Station Baggageman, at Pennsylvania Station, Baltimore, Maryland.






Petitioner asserts that the questions to be decided are (1) whether Claimant was guilty of the offense charged, (2) whether he received a fair and impartial hearing, (3) whether the discipline penalty of dismissal was warranted, and (4) whether his record should be cleared and that he be compensated for lost time.


Claimant was charged with not being available when called for duty on September 27 and 28, 1961. At the hearing the following question and answer took place:



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Petitioner argues that Claimant's absence on the 27th was not willful because he had to take his mother to his Aunt's house and asked to be dropped to the bottom of the extra list. The fact is that Claimant said that "on the 26th, I think I came in to ask Mr. Chilcoat to be dropped to the bottom of the list" (Emphasis ours.) He did not say affirmatively and definitely that he did so. He did say that he was guilty of the charge.


Furthermore, Claimant admitted that there was no one at his home on the 28th to answer the telephone. The record shows that his Foreman not only called Claimant's home on both dates, but on the 28th also called another number given to the Foreman by Claimant's sister. Claimant's sister answered the telephone at Claimant's home and referred the Foreman to the latter number where she thought Claimant could be reached.


It was Claimant's duty to keep himself available for extra work. If he found it necessary to leave his home knowing that there would be no one to receive a work message, he should have telephoned his Foreman or assignment clerk and inquired if they had tried to reach him, and if a work assignment was available.


At no time, on the property, did Petitioner question Claimant's guilt. Petitioner asserted only that the penalty was too severe.


Item 6 of the Extra List Agreement does not prohibit Carrier from disciplining an extra employe who, without good and sufficient cause, was unavailable for work when called. See Award 11047.


Claimant admitted that he received a fair and impartial hearing. When he was asked at the hearing if he desired representation, he replied: "No sir." Further, the Joint Statement of Agreed-Upon Facts says that "Claimant was afforded a fair and impartial trial."


Claimant had nine years of seniority with the Carrier. During that time he was reprimanded and disciplined seven times prior to his dismissal. All but one of these were far failure to report for duty when assigned and unexcused absence from work. There is no evidence that Carrier was vindictive, arbitrary or capricious. In the absence of such a showing, we may not substitute

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 our judgment for the Carrier. See Awards 11803, 11017, 11324, 11531, 10642, 10595, 10596, and others.

 On the basis of the record, there is no basis to clear Claimant's record and to reinstate him with compensation for lost time.

 FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and









Dated at Chicago, Illinois, this 24th day of January 1964.