Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26925
THIRD DIVISION Docket No. MW-26637
88-3-85-3-445
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The thirty (30) demerits imposed upon Laborer R. V. Perez for
alleged 'violation of General Rule B, and General Regulation 702 and 702(B)'
was without just and sufficient cause and on the basis of unproven charges
(System File D-4/013-210-P).
(2) The claimant's record shall be cleared of the charges leveled
against him and the thirty (30) demerits imposed upon him in connection
therewith."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Following an investigative hearing, the Claimant received a disciplinary penalty of 30 demerits
February 13, 1984, and for failing to notify his Supervisor of his absence.
The record establishes that the Claimant failed to report for duty on
February 13. The Claimant testified at the investigative hearing that he had
advised his Acting Foreman on Friday, February 10, as well as on Monday,
February 13, of his prospective absence. The Carrier concluded that he had
not, in fact, received (and possibly not requested) permission to be absent.
Review of the record leaves the Board convinced that the Carrier had substantial basis for this conc
Form 1 Award No. 26925
Page 2 Docket No. MW-26637
88-3-85-3-445
The Claimant testified as to talking with a fellow crew member, who
at times served as Acting Foreman, during the week before, as to a prospective
absence because of a sister's illness. Yet he did not know then that the
other employee would be serving as Foreman on February 13. His account is
quite confusing, as indicated by this exchange with the Hearing Officer:
"Q. Mr. Perez were you absent Monday, February 13,
1984?
A. Yes I was.
Q. And did you notify either Mr. Brown or Mr.
Barron (the Acting Foreman] that you would be absent?
A. Yes I talked to Mr. Barron.
Q. When did you talk to Mr. Barron?
A. We talked about a week before about my sister
and I told him that I would be off the following week.
He can't recall my phone call I told him I wouldn't be
in.
Q. You said the following week. Do you mean the
preceding?
A. The week before.
Q. You talked to him on Thursday?
A. Thursday or Friday.
Q. Did you ever give a specific date that you
would be going?
A. No it wasn't a specific date. I told him I
would be going Monday was the day I left . . . .
Q. Let me rephrase that. Have you received
instruction from the company of the proper procedure to
request a day off?
A. Did I receive a letter form wise?
Q. Any verbal instructions?
A. The only verbal instructions that I got was
when he told me to call in the office or notify your
foreman, otherwise I never received any.
Form 1 Award No. 26925
Page 3 Docket No. MW-26637
88-3-85-3-445
Q. Per the verbal instructions from Mr. Brown, are
you to notify him in advance if possible?
A. If possible.
Q. And if not possible, call him at his house?
A. I don't have his home number. I never had his
home phone number.
Q. Could you have called Mr. Barron and told him
that you were going to be off?
A. Yes, we did call Mr. Barron.
Q. At home?
A. Yes I did.
Q. Did Mr. Barron answer?
A. Yes he did.
Q. When did you call Mr. Barron at home?
A. It was Friday night. I called in Monday, they
knew I was suppose to be off."
Equally indefinite is the Claimant's account of a further telephone
conversation with the Acting Foreman on Monday morning.
The Board finds no basis to question the Carrier's conclusion that
the Claimant was, in fact, absent without authority on February 13, 1984.
Given the Claimant's previous poor attendance record, the degree of penalty
(30 demerits) was appropriate.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of March 1988.