This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Following an Investigation, Track Supervisor Ortegon notified the Claimant, by letter dated October 18, 1993 that he had been dismissed from service. Prior to his dismissal, the Claimant, with 15 years of service, held seniority in the Track Subdeparmment. At the time of the events which led to the dismissal of the Claimant, he was assigned as a Welder Helper on Gang 9044 under the supervision of Track Supervisor Ortegon.
Turning first to the merits of the dispute between the parties, Rule 604 provides as follows:
The language of Rule 604 is simple and unequivocal. The Rule, in relevant part, states that employees are prohibited from being absent from duty "without proper authority."
The Claimant admitted that he violated Rule 604 by his absence on August 16, 20 and 23, 1993. He acknowledged that he did not comply with Rule 604 because "it's nobody else's responsibility but yourself to get yourself to work ...."
The Claimant said that he paged Track Supervisor Ortegon on the three days in August. However, merely paging Track Supervisor Ortegon does not constitute proper authority to be absent from duty. Advising or notifying the Carrier of an intended absence is inadequate as authorization for being absent. Advance notice must be combined with the proper authority for the absence. Proper authority to be absent must Form i Award No. 32139
be based upon permission from a person in command, such as Track Supervisor Ortegon.
The Claimant was aware of the "proper authority" within the scope and meaning of Rule 604 that was required. He had been granted authority to be absent in the past when he paged his Supervisor and disclosed the reason for his absence. The Claimant admitted that on these occasions Track Supervisor Ortegon had given his verbal authority to be absent. Although he paged Track Supervisor Ortegon on August 16, 20 and 23, the Claimant admitted that no such verbal authority was given. Clearly the Claimant was absent without authority on August 16, 20 and 23, in violation of Rule 604.
The Organization raises several procedural objections which must be addressed. Rule 48 (a) and (o) provide as follows:
Contrary to the claim by the Organization, the Carrier did not violate Rules 48 (a) and (o) by withholding the Claimant from service pending the outcome of the Hearing. Rule 48 (o) authorizes the Carrier to withhold the Claimant from service pending the outcome of the Hearing because of the Claimant's serious and flagrant violations of Rule 604.
The Claimant violated Rule 604 on three different occasions within a period of seven days. The Claimant's violations of Rule 604 were serious and flagrant. The Claimant's deliberate and repeated absences within such a short period of time amounted to no less than a flouting of his obligation under Rule 604 not to be absent without proper authority.
The Organization also contends that the Carrier deprived the Claimant of his right to a fair and impartial Hearing because Track Supervisor Ortegon was not only the Charging Officer, he also rendered the decision following the Hearing and Investigation.
In support of its claim, the Organization relies upon Third Division Award 13180 which provides:
In Award 13180, there was "conflicting testimony in the transcript of the hearing as to material and relevant facts." Thus, only the Hearing Officer was qualified to make findings of credibility.
In this case the material and relevant facts were admitted by the Claimaut. He said that unlike past occasions when he was absent, he failed to receive verbal authority from Track Supervisor Ortegon to miss the days of August 16, 20 and 23. Thus, no issue of credibility was raised. Accordingly, the fact that Track Supervisor was both the Charging Officer, and the officer who rendered the decision of dismissal, did not prejudice the Claimant. Form 1 Award No. 32139
The procedural arguments raised by the Organization are not supported by the record. Thus the Board concludes that the Carrier complied with Agreement due process in the handling of the case.
Having established that the Claimant was afforded Agreement due process and that there is substantial evidence of his serious and flagrant violation of Rule 604, the question which remains to be considered is the assessment of discipline. The Claimant has had 15 years of service with the Carrier. However, his work record since 1989 includes dismissal for being absent without authority, discharge and suspension for other serious offenses.
Accordingly, the Board finds that the Board did not act unreasonably, arbitrarily or capriciously in terminating the Claimant. The claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.