NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-26336
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-9978) that:
(a) Carrier violated the Agreement on November 15, 1983, when it
removed L. C. Hargrove from service, and
(b) Carrier shall now reinstate L. C. Hargrove to service with all
rights unimpaired and with pay for all time lost, from November 15, 1983, forward."
OPINION OF BOARD: Claimant had a June 29, 1976, seniority date on the Car
rier's Colorado Division Station Department Seniority Dis
trict. Claimant first entered service with the Carrier in August, 1970.
The Investigation Transcript in this matter shows that Claimant requested and was granted a leav
August 19, 1983, and ending September 18, 1983. On September 14, 1983, Claimant contacted Carrier's
the record of the Investigation (which Claimant did not attend even after
being granted a postponement) shows that McCullough testified that Claimant
only asked for an extension of 30 days. The request to extend the leave was
granted to October 19, 1983. A standard form was mailed by the Carrier that
specifically designated that Claimant's leave of absence expired on October
19, 1983. The form concluded that "[f]ailure to report for duty on or before
the date of expiration of leave of absence, unless application for extension
shall have been made, will be considered sufficient cause for dismissal."
Claimant did not report for service on October 19, 1983, and was notified of his termination.
As earlier noted, Claimant did not attend the Investigation even
after he requested and was granted a postponement. The record reveals that on
the day of the Hearing, Claimant's Representative spoke with Claimant on the
phone and Claimant asked his Representative to read a statement into the record. The record reveals
Award Number 26153 Page 2
Docket Number CL-26336
"Q. Mr. Drummond, you stated that you had further
conversation with Mr. Hargrove this morning?
A. Yes.
Q. And, what did he say to you in this conversation about representing him or about him being pr
A. He wanted me, in his absence, to read a state
ment in his behalf.. The statement being, and I
would like all references to the subject I, to be
considered as Mr. Hargrove, in this statement. He
told me, 'When I left Pueblo I signed 3 leave of
absence forms. Before the first expired I con
tacted Mr. McCullough to extend, the leave. I was
under the impression Mr. Mcullough's [sic] OK was
for a 60 day leave of absence.' And that is the
end of the statements that Mr. Hargrove wished me
to repeat in his behalf.
Q. Did Mr. Hargrove tell you where he was and why
he was not appearing at the investigation?
A. No.
Q. You do not know where he called from when you
talked to him this morning?
A. No, I don't."
After the Investigation, Claimant was dismissed from service.
The Organization argues that the removal of Claimant was an arbitrary
and capricious act by the Carrier. The Organization first asserts that Rule
24-A of the Controlling Agreement has been violated because Claimant was not
given a fair and impartial Hearing due to McCullough's alleged failure to divulge that prior to Clai
leave of absence forms, two of which would be used in case more time off was
needed. Second, the Organization claims that there was a misunderstanding
which led to Claimant inadvertently overstaying the second thirty day leave.
Third, the organization contends that under the circumstances, the discipline
rendered (i.e., that of discharge) was unduly harsh especially because Claimant was told by McCullou
of absence forms in violation of the Carrier's own policy. Therefore, according to the Organization,
Award Number 26153 Page 3
Docket Number CL-26336
Putting aside the issue raised by the Carrier concerning whether an
Investigation was even required under the self-executing language of Rule
21-C, the real assertion by the Organization, and the issue in this case, is
the contention that the action of the Carrier was arbitrary and capricious.
Based upon this record, we can not sustain such an argument. If there were
mitigating circumstances that existed that could justify setting aside the Carrier's action or reduc
signed three blank leave of absence forms and, in fact requested a 60 day
extension on his leave of absence, rather than a 30 day extension as stated by
McCullough, Claimant could well have explained those factors at the Hearing
which was initially rescheduled at his request. Claimant did not attend the
Hearing and indeed offered no explanation as to why he could not attend. In
such circumstances, failure to appear at the Hearing was at Claimant's peril.
Third Division Award No. 20113. The Organization's argument that Claimant did
not receive a fair and impartial Hearing must be rejected. It was not the
Carrier's obligation to introduce the Claimant's evidence. Claimant could
have avoided the result by simply attending the Hearing and providing his
version of the incidents. We find nothing in this record to even suggest that
evidence was falsified or purposely withheld or that the Hearing was conducted
in a manner that indicates anything other than fairness and impartiality.
However, even if we were to consider the obvious hearsay assertions
made by Claimant in his statement read at the Hearing, we would nevertheless
be unable to conclude, as the organization would have us do, that the action
of the Carrier was arbitrary and capricious. Based on the record, there is
substantial evidence to justify the Carrier's actions. McCullough testified
that Claimant asked for and received a 30 day extension on his leave of
absence and did not appear for work at the designated time. There is nothing
in the record to show that there was an unavoidable delay to warrant overturning the Carrier's decis
was sent the standard form which specifically stated that his leave was extended only to October 19,
had been granted a 60 day extension are simply insufficient, in our Opinion,
to overcome the clear and unrebutted evidence offered by the Carrier. Although the Organization rais
Carrier, a careful review of the record does not demonstrate a denial by the
Claimant that he, in fact, received the form giving the exact date on which
his leave was to expire.
Whether we may have reached a different result or imposed a lesser
penalty upon a de novo review of the facts is irrelevant. In light of the
state of the record and the fact that our function in this kind of case is
only to determine whether there was substantial evidence in the record before
us to justify the Carrier's actions, we are compelled to find that substantial
evidence exists and the Carrier's actions were neither arbitrary nor capricious.
Award Number 26153 Page 4
Docket Number CL-26336
The leave of absence provisions of Rule 21-C are clear. "An employe
who fails to report for duty at the expiration of the leave of absence shall
be considered out of service, except that when failure to report on time is
the result of unavoidable delay the leave of absence will be extended to
include such delay." On the basis of this record, Claimant clearly did not
report on time and no sufficient evidence exists to show an unavoidable delay.
The Claim must therefore be 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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attes
i
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 29th day of September 1986.
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