NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26647
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
(Northern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman G. Suitor for alleged unauthorized
absences on May 2 and 16, 1984 was without just and reasonable cause and a
gross abuse of justice and discretion by the Carrier (System File C-D-2430/MG-4800).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, the charge leveled against him shall be removed from his
record and he shall be compensated for all wage loss suffered."
OPINION OF BOARD: Claimant, a Trackman, was dismissed from service after
being absent from work on May 2 and 16, 1984 without
permission.
On May 2, 1984, Claimant was absent because "I had to go to a meeting to sign some very importan
off on my house so I could sell it." According to Claimant, he was not made
aware of the need for the meeting until after he finished working on May 1.
Claimant asserts that he made several attempts to call the Track Supervisor's
office regarding his need to attend the meeting but could not get through.
On May 16, 1984, Claimant received dental treatment resulting from
pain he suffered from previous dental work. According to Claimant, the dental
work was performed on an emergency basis. Claimant was at the dentist's
office from 8:00 A.M. until 2:00 or 3:00 P.M. Claimant admits that on that
date he made no attempts to notify the Carrier about his absence. On May 17,
1984, Claimant requested that he be given two vacation days.
Claimant's prior record shows that during the period September 20,
1983 through November 23, 1983, Claimant received a written warning and suspensions of five (
These disciplinary actions were taken pursuant to the July 25, 1977 Memorandum
of Agreement between the parties providing for a warning, 5 day overhead and
10 day suspensions prior to dismissal for absences without permission.
The Organization initially argues that Claimant was denied a fair
Hearing under Rule 24 of the Agreement in that the Carrier representative
rendering the decision following the Hearing was not the same individual conducting the Hearing and
Award Number 26308 Page 2
Docket Number MW-26647
making the decision. On the basis of this record, we conclude that the Organization's position i
made by the Organization under the specific terms of the 1977 Memorandum of
Agreement have not been sufficient to sustain claims for discipline rendered
pursuant to that Agreement. See Third Division Award 26050. Second, the
facts in this case are basically undisputed. In light of those undisputed
facts and the basic language of the 1977 Memorandum of Agreement for resolving
disputes arising under that Agreement (see Sections 6 and 7 which permit an
employe disciplined under the 1977 Memorandum of Agreement to progress a claim
through the regular grievance handling procedure while also recognizing that
the provisions of Rule 24 of the controlling Agreement do not apply), we find
no prejudice suffered by Claimant sufficient to require a different result.
With respect to the merits of the Claim, we find substantial evidence in the record to support t
Claimant clearly was absent without permission on the dates at issue and he
was treated in accord with the terms of the 1977 Memorandum of Agreement. In
light of that, and on the basis of the record, we cannot say that dismissal
was an arbitrary and capricious act by the Carrier so as to amount to an abuse
of its discretion. This Board has upheld similar actions under the same
Agreement. See Third Division Awards 26051, 26050, 25825, 25414.
Claimant's offered excuses for the absences do not change the
result. On May 2, 1984, Claimant could have taken more steps than he did to
contact the Carrier. The record discloses that all Claimant did was call the
Track Supervisor's office several times only to receive a busy signal. Claimant lived approximately
his meeting was to take place. If Claimant was having difficulty getting
through on the telephone, Claimant could have easily come by the camp office
prior to starting time and made his request in person for permission to be
off. In light of his recent discipline for being absent without permission,
such effort would have been logical. We find the Awards cited by the Organization in its Submission
In those Awards (see Third Division Awards 24573, 23039, Second Division
Awards 8647, 8491), no Carrier representative was available to take the call
from the employe and the employe was not held responsible for that unavailability. Such is not the c
Claimant simply made insufficient effort to contact that person. Similarly,
with respect to May 16, 1984, Claimant made absolutely no effort to contact
the Carrier on that date. We do not view Claimant's dental problems on that
date to be of such degree that can excuse him from at least calling the
Carrier or having someone else do so and inform the Carrier of his condition
and whereabouts.
In light of the clear language of the Memorandum of Agreement
addressing absences without permission and the specific disciplinary treatment
for employes who are absent without permission and further in light of Claimant's prior disciplinary
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Docket Number MW-26647
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
Attest:
apie't
'Nancy J. WvpC- Executive Secretary
Dated at Chicago, Illinois, this 13th day of May 1987.