Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27009
THIRD DIVISION Docket No. MW-27673
88-3-87-3-131
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The sixty (60) days of suspension imposed upon Track Laborer R. S. Martinez for alleged violation of Rule 604 was without just and sufficient cause and in violation of the Agreement (System File MW-86-40/448-51-A).

(2) The claimant's record shall be cleared of the charge leveled against him and he shall be compensated for all wage loss suffered."

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.



Claimant was absent from work for six days. When he attempted to return to duty he was suspended and cited for an investigation. After the investigation, he was disciplined with a 60 days' suspension. The Organization seeks to have the dis to notify Carrier that he would be away from his job and, also, that he had a legitimate reason for being absent from duty.

We will first examine the issue of being withheld from service pending investigation. The last s Agreement deals with this matter. It reads:


Form 1 Award No. 27009
Page 2 Docket No. MW-27673
88-3-87-3-131

There is no question that in serious disciplinary matters Carrier has license to hold an employee out of service pending his investigation. However, it is our opinion that being AWOL for six days, by itself, is not the type of "serious case" contemplated by the Rule.

The act of improperly withholding Claimant from service does not automatically prejudice the entire investigation, as originally contended by the Organization. In such situations, by well defined authority, employees are only entitled to payment for the period improperly suspended. See Third Division Awards 22934 and 25118. Accordingly, Claimant is entitled to payment for the work days lost, (less the date of the investigation), between the date held out of service and the date he was notified of his discipline.

On the merits of the matter, there is no question that Claimant absented himself without proper authority for six consecutive work days. He claims that he attempted to phone his supervisors and seek permission to be absent but he was unable to complete the call. In this regard we note that he attempted to call but once, on the first date of absence, and this call was placed from a location nearly 400 miles away from his work site. This conduct does not indicate that a serious attempt was being made to secure permission to be absent. In fact, if anything, this single attempted call, occurring over eight calendar days demonstrates a basic disregard for one's obligation as an employee to protect his job or secure proper permission to be absent. Accordingly, discipline for this established instance of AWOL is not inappropriate.

Levels of discipline assessed in such cases cover the complete scope: warnings, reprimands, brief suspensions, long suspensions and even permanent dismissal. Obviously many factors are involved. In this case, it was Carrier's judgment that the vio not substitute our judgment for that of Carrier as to whether circumstances warranted this level of suspension or something else. The suspension, though, was retroactive to the date Claimant was charged and initially withheld from service. Earlier we indicated that during this period Claimant was improperly withheld from duty and awarded compensation accordingly. Therefore, the 60 day suspension shall be reduced by the number of these days.






                          By Order of Third Division


Attest:
      ' Nancy 14'er - Executive Secretary


Dated at Chicago, Illinois, this 25th day of April 1988.