Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28156
THIRD DIVISION Docket No. MW-28419
89-3-88-3-205
The Third Division consisted of the regular members and in
addition Referee Charlotte Gold when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Section Foreman S. W. Ellis for alleged
unauthorized absences on October 6, 7, 8, 9, 10, 13, 14 and 15, 1986, was
excessive, without just and sufficient cause and in violation of the Agreement
(System File CP-168/AMWB 87-04-22H).
(2) The Claimant shall be reinstated with seniority and all other
rights unimpaired his record shall be cleared of the charges 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.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant was dismissed from service, following an investigation
held in absentia, for his alleged unauthorized absences on eight occasions
between October 6 and 15, 1986. At the time of his dismissal, Claimant had
over fifteen years of seniority. His prior record included four written
warnings and a ten-day suspension in 1985 for absenting himself from service.
The Organization argues that because of Carrier's failure to provide
evidence that Claimant was properly notified of the investigation, it violated
Rule 46 (C), which provides for timely notice of a hearing. It also contends
that the Local Chairman's request for a postponement should have been granted.
Carrier maintains that copies of exhibits proving proper notification were
provided to Claimant's representative, and that the request for a postponement
was untimely.
Form 1 Award No. 28156
Page 2 Docket No. NW-28419
89-3-88-3-205
From a review of the record, this Board concludes that while a
postponement may have been warranted, Carrier essentially followed proper
procedures in this instance. There can be no doubt that Claimant was absent
on the days in question. Given Claimant's total record, however, we find that
a lesser penalty than final discharge is called for in this situation. Thus,
we shall reinstate Claimant, without backpay, on a last-chance basis, with the
understanding that he must protect his assignment on a regular basis or else
subject himself to dismissal.
A W A R D
Claimant sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Cancy J. D Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1989.