"Claim of the System Committee of the Brotherhood that:

(1) The discipline [Level 2 with a five (5) day suspension and a two (2) year probation period] imposed upon Mr. M. W. Taylor for his alleged violation of MOW Operating Rule 1.13 `Reporting and Complying with Instructions' and MOW Operating Rule 1.15 `Reporting of Absence' in connection with an alleged absence from duty without proper authority on August 6,1999 while assigned as section laborer on Rochelle East Section was without just and sufficient cause, based on unproven charges and in violation of the Agreement [System File C-99-S090-17/10-99-0351(MW) BNR].

(2) As a consequence of the violation referred to in Part (1) above, Mr. M. W. Taylor shall now have all reference of this discipline cleared from his record and he shall be paid for any and all lost wages."

Parties to said dispute were given due notice of hearing thereon.

headache which was "so severe" that he asked his wife to contact Roadmaster Goy because he was "too sick" to make the call. According to the Claimant, his wife obtained the Roadmaster's phone number and left a message explaining that her husband was ill and not able to report for work. However, when the Claimant's Foreman reported his absence to the Roadmaster, Mr. Goy stated that he had not received a message from, or about the Claimant.

As a result, on August 12,1999, the Carrier sent (the Claimant) the following directive:

"Attend investigation in the Roadmaster's office at 8:00 A.M. hours on Thursday, August 19, 1999 for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged unauthorized absence from duty without proper authority on August 6, 1999 while assigned as a section laborer on Rochelle East Section."

Subsequent to two postponements the Investigation commenced on September 9,1999 after which the Claimant was informed that:

"As a result of investigation afforded you on September 9,1999, you are

suspension, commencing October 11, 1999 for violation of MOW

Operating Rule 1.13 `Reporting and Complying with Instructions' and

MOW Operating Rule 1.15 `Reporting of Absence'.

In addition, this begins a probationary period of two (2) yeas. If you commit another rule violation during this period, you win be subject to further discipline.

In accessing discipline consideration was given to your personal record. This letter will be placed in your personal 61e-"

The Organization protested the discipline, maintaining at the outset that the Claimant's Investigation was not impartial, nor had the Claimant been afforded the due process to which he was entitled. Specifically, the General Chairman asserted that:

"It is obvious throughout the transcript the conducting officer was not trying to function as a finder of facts, but instead had already determined the Claimant's guilt and was only going through the process in order to justify the discipline."

The General Chairman further stated that:

"Reading the transcript it is clear that Mr. Taylor's wife called in and left a message that Mr. Taylor would not be at work that day because of his migraines. It is up to the Carrier to prove its charges against Mr. Taylor and had every opportunity through the phone records to do so and chose not to. I am requesting that the Carrier, by failing to prove the charges against Mr. Taylor, remove all discipline from Mr. Taylor's record and pay him for any and all loss of wages."

The Carrier denied the claim maintaining that the Claimant's Investigation was conducted in a fair and impartial manner, with "no exception taken."

Regarding the merits of the issue, the Carrier contended that the Claimant violated Rules 1.13 and 1.15 of the Agreement when he failed to properly report the August 6, 1999 absence, thereby rendering the assessed discipline warranted in the circumstances.

At the outset, the Organization asserted that the Carrier violated the Claimant's due process rights and prejudged him. However, there is no evidence on this record which supports such assertions. Specifically, we find no fatal flaws regarding the Hearing Officer's handling of the Investigation, nor do we find evidence that the Claimant was prejudged, or that his Agreement rights were violated in any way.

Turning to the merits of the dispute, the Claimant was charged with violating Rules 1.13 and 1.15. In pertinent part, those Rules state that:

"Rule 1.13. REPORTING AND COMPLYING WITH INSTRUCTIONS:

Employees will report and comply with instructions from supervisor who have the proper jurisdiction. Employees will comply with instructions issued by managers of various departments when the instructions apply to their duties.

Rule 1.15. REPORTING OR ABSENCE

Employees must report for duty at the designated time and place with the necessary equipment to perform their duties. They must spend their time on duty working only for the railroad. Employees must not leave their assignment, exchange duties, or allow others to till their assignment without proper authority."

The Rules that the Carrier charged the Claimant with violating are clear and unambiguous. The Claimant did not have the proper authority to miss work on August 6,1999, and was therefore required to report for duty. When the Claimant failed to report for work, he was in violation of these Rules.

02.3-00-3-751