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





(a) The Carrier violated Rule 20 of the Clerks' Agreement when as a result of an investigation held April 19, 1980, (sic) it wrongfully found Claimant Plichta at fault for absenting himself from duty April 3 and 4, 1978 and administered discipline in the form of five (5) days overhead suspension.

 (b) Carrier should now rescind such discipline and Claimant's record be made clear.

(a)~ The Carrier violated Rule 20 of the Clerks' Agreement when as a result of-an investigation held April 19, 1978, it wrongfully found Claimant Plichta at fault for absenting himself from duty April 5, 6 9, 10, 11 and 12, 1978 and administered discipline in the form of fifteen (15~ days overhead suspension which resulted in Claimant being required to serve five (5) days actual suspension as a consequence of discipline having been assessed at an investigation held previously the same date.

 (b) Carrier should now rescind such discipline, and Claimant's record be made clear and he should be made whole for all time lost.

(a) The Carrier violated the Clerks' Agreement when as a result of an investigation held April 27, 1978, it wrongfully found Claimant Plichta at fault for absenting himself from duty April 13, 16, 17, 18, and 19, 1978 and administered discipline in the form of thirty (30) days overhead suspension which resulted in Claimant being required to serve fifteen (15) days actual suspension as a consequence of discipline having been assessed at an investigation held April 19, 1978.

 (b) Carrier should now rescind such discipline, and Claimant's record be made clear and he should be made whole for all time lost.
                      Docket Number CL-24428


OPINION OF BOARD: On Friday afternoon, March 31, 1978, Clerk J. L. Plichta
 telephoned Superintendent L. E. Acton requesting a leave of
 absence due to nervousness. Acton advised Claimant that he would grant the leave
 if Claimant secured a statement from his personal physician verifying his medical
 problem. That same afternoon Claimant informed Acton that his doctor would not
 give him a statement. Acton then advised Claimant to see a company doctor at
 Carrier's expense, and a leave would be granted if such physician gave Claimant
 a statement. Arrangements were made for Claimant to see the company doctor that
 evening, however Claimant could not keep his appointment due to lack of transporta
 -tion. A new date was arranged for Monday, April 3rd. Claimant asked for and
 received Sunday, April 2nd as a day off. Claimant did not keep his medical
 appointment on April 3rd. Two days later Carrier sent Claimant a written notice
 to appear at an investigation on April 12th charging him with being absent
 without proper authority on April 3rd and 4th. The Carrier's letter was returned
 by the U.S. Postal Service as undeliverable. At the hearing on April 12th, the
 local Chairman requested a postponement to April 19th. Said request was granted.
 Carrier then instructed Claimant to attend another hearing on April 19th on
 charges of absenting himself for 5 days beginning April 5th. Thereafter a third
 hearing was scheduled on April 27th when Claimant was charged with 5 days'
 absence beginning April 13th. At the first hearing Claimant was found guilty
 and discipline imposed of 5 days overhead suspension. The second hearing also
 resulted in a guilty finding with a 15 day overhead suspension. The third
 investigation followed the pattern of the first two and resulted in a 30 day
 overhead suspension. For his absence of 13 days, Claimant received a total o?
 50 days overhead suspension of which he actually served only twenty.

 The Organization contends that Claimant was not accorded a fair and impartial hearing into the charges. Various defenses were raised.

 (1) The "double jeopardy" argument. The Organization argues that the hearing on claim numbers 2 and 3 are nothing more than extensions or continuations of the initial hearing on claim number 1 since the facts and circumstances are identical except for the dates of the absences. By segmenting the continuous work days into three separate incidents the only purpose served was to impose progressively greater levels of discipline.

 The Carrier notes that each day's absence without permission constitutes a separate violation and nothing in the Agreement limits the number of hearings even if the charges are essentially identical. "Double jeopardy" describes the peril of a defendant who is tried for the same offense more than once. The concept of "double jeopardy" applies in criminal matters, but even if it were applicable to a labor agreement it would not be relevant in the instant case.

 (2) The use of the same officer to bring charges and act as hearing officer or for a witness to act as an appeal officer. Such arguments have been considered and rejected by the Third Division.

        Award 21228 - Wallace


"The fact that the hearing officer was also the charging officer

is not a defect which undermines the essential fairness of the

                Award Number 24401 Page
                3

                . Docket Number CL-24428


        hearing. There is no prohibition of this in the agreement and the Third Division awards have not viewed this as a basis for unfairness."


        Award 19708 - Lieberman


        "... there is nothing in the Rules prohibiting an officer who acted as a witness from serving as an appeals officer. There appears to be no evidence or support in the Rules for the contention that the function of the Superintendent as the presiding officer, after appearing as a witness in the earlier investigation, in any was impaired the rights of the Claimants."


(3) The alleged duty of the Carrier to produce witnesses whom the Organization deems necessary for its defense. Carrier contends that it has always been the responsibility of the Claimant and/or Organization to arrange for their witnesses and in this case Plichta was so advised in the charge letters. Decisions of the Third Division support the Carrier's contention, (Award 15025 - Mesigh, 16261 - Dugan, 111443 - D olnick).

 The argument that certain testimony was improperly excluded. The Organization sought to elicit testimony bearing upon Claimant's emotional or personal problems. The record shows that the Hearing Officer noted that Claimant had personal problems which created his work related problems but excluded a detailed recitation of the. personal problems. This-Board is comriuced that all relevant and pertinent evidence was received and no prejudicial error was wade by the exclusion. (See Award 8806 - Bailer).

 Prolonged, unauthorized absences from duty create a serious disruption of Carrier operations, (Award 14601 - Ives). Upon the entire record it is apparent that the Carrier sustained its burden of proof. The discipline imposed was not arbitrary, capricious or unsupported by the record. The claim is therefore denied.

        FINDINGS: 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.

                      Award Number 244m Peg a f+

                      Docket Number CL-21+428

                      A W A R D


        Claim denied.


                            NATIONAL RAI IROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Date at Chicago, Illinois, this 26th day of may 1983.

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JUL 2 71983 i

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