(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company ( (A 6 P Regions)

(1) The dismissal of Section Laborer Leroy Mitchell was without just and sufficient cause and on the basis of unproven charges (System File MW-NA-72-102).

 (2) Track Laborer Leroy Mitchell be reinstated with seniority,vacation, and all other rights uni
OPINION OF BOARD: This is an appeal from Carrier's action in dis
 missing Claimant, a track laborer. After being
 absent without permission on August 14 and 15, 1972, the Claimant was
 advised by letter dated August 16, 1972 that he was dismissed from ser
 vice because of "being absent without permission" as covered by Rule
 25 of the Agreement; an investigation was held on September 1, 1972,
 pursuant to the General Chairman's request; and Carrier upheld the
 dismissal by letter to Claimant dated September 18, 1972.

 We have a threshold procedural issue arising from Carrier's contention that the Board is barred from considering the herein claim because it is not the same as the claim progressed on the property. The Carrier correctly states that the claim presented to the Board asserts that Claimant was dismissed without just cause and on the basis of unproved charges. Such a statement of claim obviously goes to the merits of whether Carrier's permanent dismissal of Claimant is supported by the record before this Board. However, the Carrier asserts that the Organization's sole contention on the property was that the Carrier's post-hearing decision was improperly rendered and that such contention has now been abandoned. The correspondence on the property shows that the Organization relied heavily on the contention that, since the General Chairman requested the hearing in Claimants bchalf, the Carrier's posthearing decision should have b as Carrier did, to the Claimant with a copy to the General Chairman. The correspondence also shows, however, that the claim was discussed in conference and we are satisfied all facets of the claim, including the merits, were discussed in conference. We conclude therefore t


The rule under which Claimant was dismissed reads as follows:



The hearing record shows that, without obtaining permission and without communicating any reason therefor, the Claimant was absent from work on Monday and Tuesday, August 14 and 15, 1972. On Wednesday, August 16, the Roadmaster wrote to Claimant dismissing him from service for being absent from duty w 25. The Claimant testified that his absence was due to sickness, and that his wife tried to notify the Roadmaster's office but could not because his, the Claimant's,phone was inoperative. Claimant also testified that his Assistant Section Foreman was a next door neighbor and that he had sent notice of a prior sickness by the Assistant Foreman. He did not mention the Aug (An August 21, 1972 doctor's statement is attached to Petitioner's Submission; however, this certifi at the hearing). The Carrier offered two witnesses, the Roadmaster and the Claimant's Section Foreman. In response to the Hearing Officer's express question about Claimant's record since March 13, 1972, these witnesses testified that since such date the Claimant had worked only 48 days, had been absent 63 days on ten different occasions, and that Claimant had permission to be absent on only three of the ten oaassions. The Roadmaster also testified that on April 12, 1972 he had written Claimant "a letter telling him he would have to improve his work record." This letter is as follows:





Nothing but this letter made any mention to Claimant about his absences from work. In this regar is pertinent:

It is also noteworthy that, in denying the appeal on the property, the Carrier pointed out that, since entering service in 1946, Claimant's prior record included two dismissals for unsatisfactory service and one for insubordination. In each instance he was rehired as a new employee.

 The Petitioner argues that, since Carrier did not dispute the fact of Claimant's sickness, and since Rule 25 does not require permission for absence in case of si dismissal for absence without permission was not proper. This argument is not compelling. The Carrier had no knowledge of Claimant's sickness on August 16 and thus cannot be faulted for treating the situation as iavolving an absence without permission. When the matter came on for hearing the Claimant defended under the last sentence of Rule 25 by attempting to show an excusable reason for not giving notice of his sickness "as early as possible" as required by such sentence. However, even though the Claimant's testimony about his sickness and his phone being inoperative was not disputed by the Carrier's evidence, the Claimant's own testimony establish Carrier's August 16 letter of dismissal was based on the first sentence of Rule 25 (absent without permission), the Claimant's defense under the last sentence of the rule was fully heard in the investigative hearing held on September 1, 1972. We are therefore satisfied that discipline was warranted for the two absences in mid-August and that the record contains substantial evidence to support a measure of discipline.

 We are not satisfied, however, that the extreme discipline of permanent dismissal is appropriate in light of the whole record. While only two absences were involved in Carrier's stated reason for dismissal, the Carrier entered a substantial amount of testimony regarding prior absences of 63 days with permission existing on only three occasions. In its Submission the Petitioner attempts to justify these prior absences by sickness, awaiting Carrier's medical clearance to return to work, vacation, and having permission to be absent. In its Answer the Carrier says that


only four of the ten occasions can be explained and that the others lack justification. Whether or not the prior absences can be justified is not the pertinent consider consideration is that the prior absences were not mentioned in the Carrier's dismissal letter. Moreover, the hearing testimony on the prior absences was not given spontaneously or to explain the two absences subject to charges; such testimony was expressly solicited by the Hearing Officer's question which called for a description of Claimant's record since March 13. We note, too, that the Roadmaster's letter to Claimant of April 12 and, indeed, the letter did not even state that the absences therein mentioned were in fact without permission. The letter merely stated that Claimant's poor work record "should be corrected if at all possible" and if not, "action will h This language falls far short of indicating that permanent dismissal would result from absence without permission. In similar vein, the Section Foreman's testimony was to the effect that there was no discussion with Claimant about the s permission or notifying someone. We therefore conclude that, in view of the nature of Carrier's evidence on Claimant's prior absences, and in view of the manner in which such evidence was developed at the hear:
 g, the record convincingly establishes that the prior absences materially influenced Carrier's decision to dismiss Claimant. Yet, during the period when the absences were accumulating, the Carrier gave Claimant no clear indication of the seriousness with which it viewed the absences. la the final analysis the Carrier's stated reasons for the dismissal did not fully disclose all of its reasons for the dismissal and, accordingly, we conclude that the record, as a whole, does not support the supreme penalty of permanent dismissal. In reaching this conclusion we have not been unmindful that, in view of Claimant's prior record, the Carrier considered itself fully justified in denying Claimant's appeal for restoration t record, and the record as a wholes presents reasons against permanent dismissal which cannot be ignored. We shall therefore award that Claimant be restored to service wit




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


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


                The record does not support the discipline of permanent dismissal.


                                  A W A R D


                Part (2) of the claim is sustained as per Opinion, but without compensation for time lost.


                                      NATIONAL RAILROAD ADJUSTMENT BOARD

                                      By Order of Third Division


                ATTEST :_& E:cecutive Secretary


                Dated at 'hicago, Illinois, this 15th day of March 1974.

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