Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27972
THIRD DIVISION Docket No. CL-28277
89-3-88-3-44
The Third Division consisted of the regular members and in
addition Referee Stanley E. Kravit when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(The Atchison, Topeka 6 Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Organization
(GL-10231) that:
Claim No. 1:
(a) Carrier violated the provisions of the current Clerks' Agreement
at Fresno, California, when it wrongfully assessed the personal record of M.
A. Rodriguez thirty (30) demerits, and
(b) Mr. M. A. Rodriguez shall now have the thirty (30) demerits removed from his personal record
Claim No. 2:
(a) Carrier violated the rules of the current Clerks' Agreement at
Fresno, California, on October 15, 1986, when it wrongfully removed Mr. M. A.
Rodriguez from the service of the Carrier, and
(b) Mr. M. A. Rodriguez shall now be reinstated into service of the
Carrier and all reference thereto removed from Claimant's personal record for
the investigation held on October 15, 1986, and
(c) Mr. M. A. Rodriguez shall now be compensated for eight (8) hours'
pay for each work day of Crew Clerk Position No. 6019 at the rate of $103.44
per day (plus subsequent general wage increases and lump sum payments) commencing October 6, 1986, u
the Carrier.
Claim No. 3:
(a) Carrier violated the rules of the current Clerks' Agreement at
Fresno, California, on October 15, 1986, when it wrongfully removed Mr. M. A.
Rodriguez from the service of the Carrier, and
(b) Mr. M. A. Rodriguez shall now be reinstated into service of the
Carrier, and all reference thereto removed from Claimant's personal record for
the investigation held on October 15, 1986, and
(c) Mr. M. A. Rodriguez shall now be compensated for eight (8) hours'
pay for each work day of Crew Clerk Position No. 6019 at the rate of $103.44
per day (plus subsequent general wage increases and lump sum payments) commencing October 6, 1986, u
Carrier."
Form 1 Award No. 27972
Page 2 Docket No. CL-28277
89-3-88-3-44
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.
This matter involves 3 separate Claims. Claim No. 1 reveals that on
October 7, 1986, Claimant was assessed 30 demerits for excessive absence between May 30 and Septembe
AWOL on all work days from September 29 until October 26, 1986, for which, in
light of his overall record, he was removed from service on October 15, 1986.
The October 15 letter of removal is also appealed under Claim 3 in that the
second paragraph additionally removed Claimant for being in violation of Rule
31-H, i.e., receiving more than 60 demerits in a single year under the "Brown
System."
The records reveals that in May 1986, Claimant was disciplined by
receiving 20 demerits for excessive absenteeism. Claimant accepted these
demerits and was counseled and cautioned to avoid further absence on penalty
of additional disciplinary action. Nevertheless, between May 30 and September
26, 1986, he took 21 sick days. In addition, he missed 2 days for a death in
the family and 3 days on personal business to attend court.
Of 76 available work days during this period, Claimant missed a total
of 26, or 34%; 28% if the personal days other than sick time are isolated.
Claimant's defense was that he was ill and under a doctor's care. He apparently had missed 22 work d
by September 13.
The Organization contends that because the Notice of Investigation
specified only "absences during period of May 30, 1986 to September 13, 1986,"
and did not specify the exact dates, the notice is deficient. We agree that a
notice must be precise enough to enable a Claimant to know precisely with what
he is being charged and convey sufficient details so that he may adequately
prepare a defense. Neither of these elements is lacking here.
The record reveals that Claimant called in when he was ill or needed
personal time off. In testimony, he was cognizant of many of the individual
dates of absence. The Hearing was postponed twice and Claimant had time to
inquire as to any dates of which he may have been in doubt. No prejudicial
error has been committed.
Form 1 Award No. 27972
Page 3 Docket No. CL-28277
89-3-88-3-44
As to the assessment of 30 demerits for the 26 days of absence, the
Board cannot say that this penalty is so clearly excessive as to require
modification. The scope of our appellate jurisdiction is well established.
We are to determine: (1) Whether Claimant received a fair and impartial Investigation; (2) Whether s
circumstances, or is arbitrary, unreasonable or capricious. In making the
latter determination, we do not substitute our judgement for that of the Carrier even in situations
Here there is no such abuse of discretion. The Carrier has presented
numerous Awards in support of the proposition that excessive absenteeism is
grounds for disciplinary action. Even assuming that each allegation of Claimant's illness is true, "
when an employer aeed no longer countenance excessive absenteeism on the part
of an employee." (Third Division Awards 27156, 26187 and 27801.) Claimant's
record justifies 30 demerits under the facts presented in Claim No. 1.
We turn our attention next to Claimant's removal for accumulating a
total of 70 demerits by virtue of being assessed 20 on May 18, 1986, 20 additional demerits as of Se
Claim No. 1, above. Under Claim No. 3 the issue is whether Claimant accumulated 60 or more demerits
final 30, making a total of 70 here, were warranted. Rule 31-H subjects an
employee to dismissal for the accumulation of 60 demerits. "The validity of
the Brown system has been upheld many times, and this Board will uphold it
here." (Third Division Award 26442)
It will be upheld in this case as well. For this reason the Board
need not reach the merits of Claim No. 2.
A W A R D
Claims No. 1 and 3 are denied. Claim No. 2 is dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
Nancy J. er - Executive Secrtary
Dated at Chicago, Illinois, this 29th day of June 1989.