Brotherhood of Railway, Airline and Steamship Clerks. Freight Handlers, Express and Station Employes PARTIES 7u DISPUTE:



Carrier violated the Agreement at Memphis, Tennessee, when on August 24, 1977, it suspended Mr. S. K. Powell from service without pay, beginning August 25, 1977, and extending through September 23, 1977.

 Carrier shall now be required to compensate Mr. S. K. Powell for all time lost during the unjust suspension period and remove all reference to the unwarranted su
OPINION OF BOARD: On the 24th of August, 1977, the Claimant was scheduled
 to work as a Utility Clerk from 11:30 a.m. to 8:30 p.m.' However, he telephoned at 11:30 a.m. to report that he would be late, but that he would report to work as soon as possible. He arrived 20 minutes later - at 11:50 a.m.

 Because of his failure to report on time, the Claimant was suspended from service without pay fo agreement, the Employe requested an investigation concerning the propriety of the assessed discipline, which investigation was conducted.

 The Organization has urged that the Enploya's failure to report for duty at the appointed hour was necessitated by an incident with his automobile, and that the Carrier was the first to be notified of his difficulty.

 While the Organization concedes that the Carrier may weigh an employe's past record after all of the evidence and testimony has been completed to ascertain the am instance the Employes insist that the Claimant's past record was introduced at the hearing prior to any evidence or testimony being taken.
                        Docket Number CL-22808


      In its Submission to the Board, the Carrier points out that the Employe has had a dismal record concerning his ability to arrive at work in a timely manner, and it points out that he vas warned that he must make arrangements to protect his assignment on time and he was told to insure that his car would not cause him to be late.


      This record presents some rather significant questions to the Board which do not admit of easy resolution.


      Initially, there is no question, at this stage of the development of arbitration law, that an Em prove a present offense against him, however it may be considered in assessing the amount of punishment to be imposed, once the offense is established independently. We do not agree with the Organization that the timing of the presentation of the past record is crucial, and the fact that it may be presented at an early stage in the proceedings does not automatically taint its consideration; although we will agree that the timin of its receipt can be indicative of the Carrier's motivation.


      Certainly, 9,.20 minute tardiness when an employe has admittedly called his employer to advise that he would be late does not normally warrant a 30 day suspension. At the same time, our review of the Enploye'e rather atrocious record leads us to understand the severity of the disciplinary action. However, once again we return to the basic question of whether or not the Employe's past record. vas used as a basis

      _ for finding the Employe guilty of an offense; because obviously, a past record is not pertinent to the amount of discipline to be imposed unless a pr.-esent offense has been established.


      The Organization has made numerous references. to the statement made by the Hearing Officer at Page 7 of the Transcript of Investigation. The Employe explained that another vehicle pulled in front of him and caused him to brake suddenly. When his engine died, he was unable to restart it. As confirmation of this, he presented a document to show the events, at which time it was stated;


                "The Compeay is not questioning the facts as presented by Mr. Powell. Exhibit 2 is not contested by the


                      ·u


      Thus, we are confronted with the question of whether any tardiness, under any circumstance, is an automatic offense, or if extenuating circumstances can excuse an absence. We do not question, for one moment, that if an employs has received a number of warnings for tardiness related to auto-


      mobile trouble, an employer will be (and should be) quite auspicious of an absence dealing with automobile difficulties. Nonetheless, we cannot agree that there can


I
                    Award Number 23188 Page 3

                    Docket Number CL-22808


Here$ the Employe presented testimony which the Company conceded to be the case, and which., to this Board.* was an acceptable reason for being 20 minutes tardy - if, in fact, it was the case,

 The Company's concession at Page 7 of the transcript is therefore quite significant to us. In addition.. we have considered the Superintendent's November 21, 1977 letter, which implies to us that the Carrier had determined that no excuse for being late would be acceptable.

 Although we will sustain the claimr we feel compelled to advise the Claimant that nothing herein should., in any manner, be considered by us to be a condonat confident that his future employment relationship is within his power to control.. because certainlyp no Carrier or employer is required to tolerate the type of tardiness and attendance record demonstrated here.

 FINDINGS: The Third Division of the Adjustment Board, after giving the
 parties to this dispute due notice of hearing thereonp aid
 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

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST: -&
      Executive 'Sebrl!g"


Dated at Chicago, Illinois this 18th day of February 1981.