Lamont E. Stallworth, Referee


      (Brotherhood of Railroad Signalmen

      PARTIES R1~ DISPtIfE (.

      (Norfolk and Western Railway Company


                    STMT OF CLAIM: "Claims of the General Committee of the Brotherhood of Railroad Signalmen


                            Claim No. 1


            On behalf of Darryl K. Swiney for the removal of a thirty-day deferred suspension from his personal records, which was assessed after as investigation held on January 15, 1980.

                            Claim No. 2


            On behalf of Darryl K. S.riney, who was dismissed following an investigation held on February 20, 1880, for restoration to service on the position of Assistant Signal Maintainer at Willoughby.. Ohio, or to any position to which~his seniority entitles him, that he be paid for all time lost account of being dismissed, and that Carrier make avs=sable to him all other rights and benefits provided for in the agreement."


      OPINION OF BOARD: The instant case involves two charges, each arising out

      of separate incidents. Each incident was investigated sep

      arately and disciplinary action was taken. Claim No. 1 arises from the assess

      ment of a thirty (30) day deferred suspension which was the result of formal

      investigation on January 15, 1980, in connection with Claimant's alleged repeated

      tardiness and excessive absenteeism from work without permission. Claimant was

      charged with "your tardiness in reporting for work and excessive absenteeism from

      work without permission, which includes November 7, 8 and 13, 1979." Mr. Herr.,

      Claimant's immediate supervisor, testified concerning the details of Claimant's

      work habits:


              "Q: Mr. Yerr, will you tell us what you know of the incident mentioned is the letter of charge?


              A: Mr. Swiney, Mr. Ronald Miller, hlr. Larry Taylor and I had been working together from the latter half of August 1979 up to the end of November. ?1r. Swiney rod

' been late for work several different times and tardy for
              work several different times a^d I spoke to aim on =umer

              ous different occasions and had also written him letters

                      Award Number 24000 Page 2

                      Docket Number SG-24723


        on October 2, 1979 and also November 2, 1979, about absenteeism and on the morning of November 6 he was one hour and thirty minutes late for work I was going to send him home that nay and if he was late on the following morning I would send him home. to work. About 8:30 AM he called the office here at Bellevue and I instructed him to go to Fairview,, Pa., and report to J. H7svtur, but he did not report until the morning of November 28."


On the date of this hearing January 15, 1980, Claimant was not present for the scheduled 9:30 AM hearing because of car trouble. The hearing commenced at 10:30 AM. Claimant called Carrier at approximately 11:20 AM to advise of his car trouble. Because of Claimant's absence at the hearing, Organization maintains Claimant was not afforded a fair and impartial investigation, pursuant to Rule 707

 Claim No. 2 arises from a charge that for January 15, 30 and 31, 1980 Claimant submitted personal expenses for which no service was performed for the Carrier.

 Regarding Claim No. 1, Carrier maintains that the transcript of the formal investigation held on January 15, 1980 contains sufficient evidence upon which to base the determination that Claimant was., in fact, guilty of the offense charged, and that the disciplinary penalty imposed was fair., reasonable and fully commensurate with the nature of the proven offense.

 Carrier maintains that Claimant was afforded a fair and impartial investigation in full conformi complete protection of his substantive and procedural due process rights.
Regarding the Claim No. 2, Carrier maintains that the testimony given by the Claimant clearly and explicitly established that he falsified his expense account for the month of January, 1980. Claimant testified:

        "Q: Can you explain why then, if you made it (claimant's expense account) out on January 29 when you showed meal . charges for the 15th when you knew you were oft duty that day?


        A: Like I stated earlier, I was not aware, that because I didn't show up that was just like not showing up for work

        at the hearing, so I forgot to take it off. Then I went to,

        get my uniform from the fob Friday and told Ron Miller that

        I was and he asked me did I send my day of

        work in for the 15th on my Time Sheet. I told him yes, and

        he said I couldn't do that because I did not show up for the

,...

                      - Award Number 24000 Page 3

                      Docket Nimmber SG-24123


                "hearing, but I was not aware of that because I was on my way to the hearing when I ran into automobile trouble.


                Q: Mr. Swiney, are you aware that you are only allowed to charge performing duties for the N &am


                  A: Yes.


                Q: On January 15, 1980, you did not perform any duties that day, so you could not have submitted expenses for that day, is that correct?


                  A: Do you mean like meals, traveling?


                  Q: (Mr. Herr - "Yes.")


                A: Well I did eat lunch and breakfast on the way. I ate breakfast on the way and lunch coming back when I found out the hearing was over.


                Q: Mr. Sxiney, you did not perform any duties tYat day, is that correct?


                  A: Right.


                Q: Then you would not be entitled to expenses for that day, correct?


                  A: Right.


                Q: On January 30, you charged $9.9T and you did not work that day, so would you be entitled to that expense - $9.97 for the 30th?


                  A: No.


                Q: On January 31, you charged $6.10 for meals and 50 miles automobile expense. You did not work that day, is that correct?


                  A: Yes.


                  Q: Would you be entitled to expenses for that day?


                  A: S;o.

r
 '' ` Q: hir. Swiney, but you still submitted Expense Account for
                those three (3) particular days, is that correct?


                  A: Yes."

                Award Number 24000 Page 4

                - Docket Number SG-24123


Carrier maintains that based on Claimant's testimony, he had a full knowledge of the provisions for personal expenses incurred in the performance of service with the Carrier. Carrier further maintains that it is perfectly clear that the Claimant filed a fraudulent expense form for January, 1980. Carrier points out that the Board has continuously ruled that acts of dishonesty and morality are se to disciplinary action. (Fourth Division Award 3779 and Second Division Award 6638).

 In regard to Claim No. 1, Organization maintains that the thirtyday deferred suspension should b was not afforded a fair and impartial investigation as required by Rule 701(x). Organization maintains that one of the most basic elements of a fair and impartial hearing is that ` present throughout the entire hearing. (Second Division Award 6083; Third Division Award 12812; Fourth Division Award 1034).

 In this case, Organization maintains., Claimant's car broke down on the day of the hearing (January 15, 1980). Claimant notified (terrier about his car trouble, yet Carrier continued with the investigation. The hearing was scheduled for 9:30 Ahi. Carrier started it at 10:30 AM. Claimant called Carrier regardin out that it has been held that car trouble may be good cause for a one-day absence from work. (Third Division Award 20198)

 Organization further maintains that nothing in the record indicates that Carrier gave any consideration whatsoever to postponing the hearing. Such callous disregard for employe's rights should not be condoned by the Board.
Regarding Claim No. 2, Organization maintains that Claimant was never -)1d that he would not be entitled to expenses under the circumstances of Ja:..ary 15, 1980; i.e., he had &eea instructed by the Carrier to report to Bellevue and ate breakfast and lunch during the trip. Organization points out that Claimant did not know that he was going to have car trouble, he was a relatively new employs. Organization maintains in these circumstances Claimant did not know that he would not be paid expenses when no one had ever explained whether he would or not. With respect to the expenses claimed for the 30th and the 31st, Claimant testified that he explained about having sent in his expenses account early, dust like they do with the payroll.
                              Award Number 24000 Page 5 .

                            Docket Number SG-24123


        Organization maintains that in its May 22, 1980 letter of denial, Carrier referred to the expenses account as requiring that the signature is to certify the account has been incurred for the benefit of the company. Organization further maintains that by the same token as employe who submits a payroll also attests to the accuracy, yet the Carrier requires employes to submit a payroll early, thus requiring them to attest at that time to having worked on days that had not arrived yet. Organization maintains: How was Claimant to know it would be considered wrong for him to handle the expense account in the s; me manner as the Carrier expects them to handle the payroll; i.e.., by requiring them to send it is before the end of the period? How was Claimant to know when he prepared expense account January 29th that he would be sick and unable to work on the 30th and the 31st.


        Upon careful consideration of the record in this matter the Board concludes Claimant was given a fair and impartial hearing. The Board initially considered Claim No. 2 in this matter. After a close examination of the evidence adduced on the record, the Board concludes that there is substantial evidence to sup Claim is denied. As a result of the Board's denial of Claim No. 2 it is not necessary for the Board to rule on Claim Nos 1.


        FITIDZZ'GS: The Third Division of the Adjustment Board, upon the whole

                record and all the evidence, finds and holds:


                That the parties waived oral hearing;


        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 not violated.


                              A W A R D


                Claim denied.


                                NATIONAL RAIh.ROAD ADJUST<<0IT BOARD

                                By Order of Third Division


          ATTEST: Acting Executive Secretary

National Railroad Adjustment Board r

        -Y

        _o~e=, rie Lrasek: - ;Ad aiaistrative Assisiaat


          Dated at Chicago, I1 .ois, this 17th day of September 1982·