On the date of the incident giving rise to this dispute Claimant was assigned as a Signalman on Signal Gang 7X19.
He was absent from his assignment on June 10 and 11, 1996. On June 11, 1996 Carrier notified Claimant to attend a formal Investigation on June 20, 1996 "to determine the facts and place your responsibility in connection with your failure to report to work on June 10, and June 11, 1996." Specifically, Carrier charged Claimant "with absenting yourself from duty without permission on June 10 and 11, 1996."
The Investigation was held as scheduled and on July 3, 1996 Carrier advised Claimant that "the transcript of this investigation proves conclusively that you were absent from duty without permission on the dates of June 10, and June 11, 1996, as charged . . ." and suspended him 30 days.
An appeal was filed on July 12, 19% with Carrier's Director Employee Relations asserting that the discipline was excessive and unfair due to the inconsistency in. the testimony of the Signal Foreman and the General Supervisor Signal Construction.
The Director Employee Relations denied the appeal on September 10, 1996, asserting that facts adduced at the Investigation revealed Claimant did not obtain authority for his absence and that same was corroborated by Claimant's testimony. Carrier further asserted that the discipline was not excessive or unfair as Claimant's absence placed it in a position whereby it was unable to accomplish the work programmed.
The appeal was conferenced by the parties on October 21, 1996, but they were unable to reach resolution of the matter. The claim is now properly before this Board for final adjudication.
Before proceeding to the merits, we note that the Organization asserts a violation of Rule 50 in its claim filed with the Board, in that Carrier allegedly failed to provide Claimant with a fair and impartial Investigation.
The Board is prohibited from considering the question of whether a fair and impartial Investigation was provided the Claimant for the reason that the record does not reveal that the question was raised and made a part of the handling on the property as is required by the Rules of Procedure set forth in NRAB Circular No. l issued Form 1 Award No. 32809
October 10, 1934. But even if we could properly consider the question, it could not be sustained because Claimant testified at the close of the Investigation that it was conducted in a fair and impartial manner and in accordance with the Agreement.
On the merits, study of the Investigation transcript convinces the Board that the charge of being absent without permission on June 10, 1996 cannot be upheld. This is so for several reasons. First, Claimant notified his Foreman on June 9, 1996 that he would not be at work on June 10 because his wife had been called into active duty by the Reserves and he had been unable to get anyone to look after his children. Secondly, Claimant's Signal Gang had just come off an assignment working eight days with six days off. The sixth rest day was June 10, 1996. Carrier presented nothing to justify denying Claimant his rest day. Thirdly, Claimant's Foreman told him he would have to call the General Supervisor Signal Construction and seek permission to be off on June 10, 1996. Although he did not call, the record reveals that the General Supervisor Signal Construction was on vacation. Obviously, he was not available to the Claimant.
Claimant had a justifiable reason for his absence on June 10, 1996, and when he so notified his Foreman by telephone on June 9, 1996, he was not told that he could not be absent. This fact considered with the other matters discussed above does not support Carrier's assessment of discipline for June 10, 1996.
The charge of absence without permission on June 11, 1996 was proven by Claimant's testimony that he did not have permission to be absent and that he did not call his Foreman and seek permission. Neither did he give a good and sufficient reason at the Investigation for his absence.
The transcript reveals that Carrier's General Supervisor Signal Construction held a coaching and counseling session with Claimant regarding his absenteeism on September 18, 1995. Therefore, he should have known that absence without permission and/or good and sufficient reason would not be tolerated by the Carrier. Claimant's failure to comply subjected him to discipline.
On the question of the discipline assessed. based upon the Board's findings the Claimant's absence on June (0, 1996 must be considered authorized, and the June 11, 1996 absence without permission, we will reduce the discipline assessed to a 15 day actual suspension and direct that Claimant be compensated for time lost in excess thereof by Carrier's original assessment of 30 days actual suspension. Form 1 Award No. 32809
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.