(Brotherhood of Railway. Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Kentucky and Indiana Terminal Railroad Company

(1) Carrier violated the Agreement when, without just cause, it dismissed from service Clerk Roy L. Sutton, Sr. effective Friday. November 16, 1979·






OP MION OF' BOARD: Claimant was dismissed from service on the basis of charges he
 had failed to protect his assignment from September 17,, 1979
 to October 5, 1979, and had failed to comply with instructions issued by Carrier
 requiring a doctor's statement verifying medical treatment covering Claimant's
 entire period of absence from September 17 to October 5, 1979.
Twenty minutes before he was to report for his regular assignment at 11:00 P.:4., Sunday, September 16, 1979, Claimant telephoned a Carrier supervisor, not his direct supervisor, stating he was sick and had to be off work. The supervisor admonished Claimant about the short notice and informed hLLiz it would be necessary to furnish a doctor's statement supporting his absence. Claimant stated he was go no problem for him to obtain such a statement from his doctor. The supervisor also instructed Claimant to report to his regular supervisor, :.r. Lenz, when he reported back for duty. On Thursday, October 4, 1979, Claimant appeared at Carrier offices and informed the Secretary to the General Agent that his do was going to release him for work that afternoon. The secretary, in Cllaiant's -presence, telephoned Supervisor Lenz, who in turn told the secretary to remind Claim..an-: Of the required medical statement, and the seerearry so informed Claimant. :hereafter a dispute arose as to whether Claimant had re addressed to Supervisor Lenz; it being Clain-It's contention '.is had placed such document in a pneu=atic tube for delivery to Supervisor Lenz at the Yard Office, and C;=rrier maintaining it did not receive it. Claimant was =emitted, to return
                  Docket Number Ci.-23809


to his regular assignment Friday, October 5, 1979. However, when Supervisor Lenz continued to maintain that he had not received the medical statement, Claimant was directed by Carrier's Superintendent to have the medical statement in his office by 4:30 P.M., October 12, 1979. The following day. Friday, October 12, 1979, at about 2:00 P.Z·i., Claimant telephoned a clerk in Carrier's IW Department and asked him to notify the Superintendent that he was in the doctor's office and it would be impossible for him to get the required statement to the Superintendent by 4:30 P.M.. The next day Supervisor Lenz received in the mail a statement, dated October 12, 1979, f' Dr. George R. Nichols, which related to the doctor's examination of Claimant. The statement reads:

        "The above named patient stated he did not work on 9/17/79 thru 10/3/79 due to a boil on his buttocks. The physical examination on the above named patient, Roy L. Sutto 10/12/79 was essentially normal. The patient is in excellent health and there are no restrictions."


As it was observed that the statement said nothing about Claimant being treated during his absence, Claimant was in excellent health, and the doctor merely repeated what Claimant had told him, Claimant was directed to appear for formal investigation, which, following several postponements, was finally held on November 13, 1979. Thereafter, by letter dated November 16, 1979, Claimant was notified that he was dismissed from service on the basis of evidence brought out at the investigation revealing him to be guilty as charged and upon a review of his past record of service.

 At the investigation Claimant had maintained that he had also gone to his doctor on October 4, 1979, a Dr. Chandra Mukherji, and had placed a copy of Dr. Mukherji's statement in the mail to Carrier. It was Claimant's contention the doctor's statement covered a period of treatment from September 17 through October 3, 1979. In an attempt to clarify the matter, the hearing officer suggested a short recess in order that someone contact Dr. Mukherji to verify the Claimant's statements. Thereafter, by agreement with all concerned, a telephone call was placed by the office secretary to Dr. Mukherji's office, with Claimant and the hearing officer listening to the conversation. Reportedly, when the secretary of September 1T and October 5, 1979, the response bras that Claimant's last visit in that office was August 30, 1979· This was, of course, 18 days prior to Claimant laying off for the period at issue and was found to have been related to an earlier absence account sickness beginning August 25, 1979.

 When the hearing resumed, and the nature of the conversation vas entered in the record, and Claimant was asked as to whether he had an explanation to offer relative office, Claimant stated; "The only thing I can say to that Mr. Mason is that evidently they didn't put it down on record but I can obtain it from the doctor that I was there the 1T of September and was given medication for the boil that was on my buttocks." In this regard, Claimant's representative suggested the investigation be held in abeyance until such time as Claimant could personally contact Dr. Mukherji relative to having treated Claimant on September 1T, 1979·
 P

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                        Docket Number CL-23809


          The request for a postponement was denied by the hearing officer, the latter stating, "I don't feel that the postpon (sic) until a later date could have a sufficient truthful value to what has already been established by the telephone conversation that


          It is the Brotherhood's position that Carrier's failure to grant Claimant this opportunity to secure additional evidence during the course of the investigation denied Claimant of a fair and impartial hearing.


          While it might appear in the first instance that Claimant should have been granted a reasonable opportunity to secure additional pertinent evidence, we believe under the circumstances of record that the hearing officer properly declined the request for a further postponexent, especially in view of the fact tha not taken exception to the response from the doctor's office during the joint telephone conversation. We also find, as the Carrier set forth in its submission, that Claimant was notified by the statement of charges on October 26, 1979 that he was going to have to answer the charge of not furnishing the requested medical statement, and since the investigation

i, had been postponed until :-.=ember 13., 1979, Claimant had ample time to
          have personally contacted Dr. Mukherjl or his office. Also to be not=d

          is that after the telephone conversation iilai:--ant was no longer referring

          to a statement covering the period September 1T through October 3, 1979,

          as he stated had been previously provided Carrier, but li-ited his st=te

          =ent to being able to obtain a statement for treatment on but one day,

          namely, September 17, 1979.


          It is the Brotherhood's further contentions that C'»:.ant -~w ~zilty of prejudgment by reason of the hearing officer securing and attaching to the transcript record. It submits the fact that the hearing officer had previously secured the service record indic such action was unable to consider all fact; eubseqa°_ntly ftevelopred in °_n unbiased manner. ?urther, that with Claimant's record made a part o_° the transcript it was impossible for the hearing officer or anyone else revie.;ing and considering the t prior record in determining anything about the case, including the question of guilt or innocence. In support of its position, the Erotherhood point to past Awards of the Board which have held that an employe's past record ::ad no place in the investigation of current charges so as to assure that any decision of the Carrier rests solely on the testitony pertinent to th= charges and not on an e`ploye's past record.


                ;de have carefully considered the h»ards cited by the 3rothercood,

          as sell as those Awards ~ohich have been cited by the Carrier in support of

          its position that the service record vas o=ly made a car-: of the trams=ri_`V

          a t the close of the hearing i =rol vi ng the charges of record. ;'ri1.°. i t is

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                Docket Number Crr23809


unquestioned that there are dirlza views as to the proper procedure to f°ollo4 in giving consideration to an employe's personal record in arriving at the measure of discipiline to be meted out, it is not necessarily treated as mreju? gnent for a Carrier to introduce the service record into the investigation, especielly whe of the accused employ. and it is announced `,.hat the record will have no bearing as to the wilt or be a factor as to the amount of discipline to be assessed. Actually, this manner of introduction of an employe's service record, in the presence of the employe, permits him opportunity to personally challenge any discrepancies or inaccuracies in th find Carrier to have been guilty of prejudgment in `.,his case.

 '=he Brotherhood also contends that the Carrier failed to charge Claimant in a precise manner and that Carrier did not meet its burden of =roof with a preponderance of evidence. It is the Brotherhood's position that the hearing notice represented the elements of a general inquiry rather than a trial related to a partiailar offense. in regard to the Carrier not meeting its as Claimant had called a supervisor prior to the starting time of his assignment to report off accou there is no.basis for the charge he bad failed to protect his assignment. Further, that since Claimant did furnish or produce a medical statement that charges related to his failing to comply with instructions to do so are without basis in fact.

 As concerns the hearing notice, we fail to find it was other than clear and precise. It properly informed Claimant of the misconduct that was to be the subject of the hearing, the time period involved, and the nature of the specific instructions he was alleged to have violated. There is no merit to the Brotherhood's contentions to the contrary.

 We believe the record as presented and developed disclosed sufficient evidence to support a find of shearing that Claimant was guilty as charged by substantial probative evidence of record. In this regard, we concur with Carrier that it is not necessary in discipline cases to prove beyond moral certainty `_he truth of the charges; substantial evidence supporting the charges being sufficient, and with the latter defined, "such relevant evidence as a reasonable man might accept as adequate to. support a conclusion." (Conso. Ed. v labor card 305 U. s. 197, 229) There is no question but that Claimant failed to protect his assignment when he absented himself from duty on the apparent pretense of being sick. Certainly, the supervisor had no alternative but to accept Claimant's lay off when he called in sick, but it then became incumbent upon the Claimant to support his extended absence by medical documentation. There is likewise no question but that Claimant was fully aware of the instructions directed to him verify the entire period of his absence, and not that he had visited a doctor
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                Docket Number CL-23809


and been found to be is excellent physical health and there are no restrictions. He had been given more than sufficient opportunity to produce the requested verification and he failed to do so both prior to and at the investigation.

 Claimant was guilty of serious misconduct by his actioas in absenting himself from duty without proper justification. Coupled with a service record that shows he had been warned about his work record, administered progressive disci The claim will be denied.

 Fr,TDI:TGS: 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 resrectively Carrier and F:ployes 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.


                          HATIOMAL RAILROAD ADITUS^=T BOARD

                          By Order of Third Division


A':^ZEST: Acting zEScecutive Secretary
 National Railroad Adjustment Board

 3y
 Rosemarie 13rasch - Administrative Assistant

 Dated at Chicago, I11inois, this 27th day of April 1983.