Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38197
Docket No. MS-39408
07-3-06-3-47
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(James Gravely
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
"Violation of Amtrak's Standards of Excellence involving, Attending
to Duties and Professional and Personal Conduct and violation of
Amtrak's National System Attendance Policy as a result of my
absences and the appeal of my termination."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
The Claimant presented his position in a phone conference with this Board.
At the time this dispute arose, the Claimant was a Welder on the
Metropolitan Division.
Form 1 Award No. 38197
Page 2 Docket No. MS-39408
07-3-06-3-47
The record shows that the Claimant was absent from duty on January 28, 29,
30 and February 3, 4, 5, 6, 10, 11, 12, 13 and 17, 2005. Further, the Claimant did
not report for work between March 11 through the issuance of an April 4, 2005
letter of termination by the Carrier.
Given the number of days the Claimant was absent, substantial evidence
supports the Carrier's conclusion that his absences were excessive. Further, the
consecutive days missed commencing March 11, 2005 and the circumstances of
those absences were sufficient to invoke the provisions of Rule 21-A:
"RULE 21-A ABSENT WITHOUT PERMISSION
(a) Employees who absent themselves from work for fourteen (14)
consecutive days without notifying their supervisor shall be
considered as having resigned from the service and will be
removed from the seniority roster unless they furnish the
Carrier documented evidence of either physical incapacity or
that circumstances beyond their control prevented such
notification. In the absence of the supervisor, the employee
shall notify the office of the Division Engineer of the division on
which last assigned."
The Claimant's assertions that his wife advised his supervisor of his reason
for being out are insufficient to change the result. There is insufficient direct
evidence to support the Claimant's assertion concerning notice. In any event, the
Claimant's absences were nevertheless excessive and, with respect to the consecutive
absences after March 11, 2005 the Claimant did not sufficiently meet the other
requirements specified in Rule 21-A to avoid the self-enforcing provisions of that
Rule.
Nor do we find that termination was arbitrary. Even putting aside the self-
enforcing loss of seniority provisions in Rule 21-A for the consecutive absences after
March 11, 2005 (which is a sufficient basis to uphold the termination) the
Claimant's prior disciplinary record shows warnings and other discipline for
Form 1 Award No. 38197
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07-3-06-3-47
absence related infractions. It was not arbitrary for the Carrier to conclude that the
Claimant was not getting the message that he must come to work so as to require
some discipline short of termination.
We also find from the documentation in the record, that the Carrier took the
required steps to notify the Claimant of the proceedings involving his discipline.
In light of the above, the Carrier's procedural arguments need not be
addressed.
On the basis of the above, the claim shall be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 18th day of May 2007.