This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The facts on the record reveal the following: The Claimant, a Signal Maintainer at Laramie, Wyoming, at the time of his dismissal, was scheduled to work on July 11 and the week of July 14, 2003. The Claimant did not report on July 11, nor did he report to work on July 14, 2003. On July 14, the Claimant's mother contacted the Claimant's Foreman and advised that the Claimant had been incarcerated and that he would not be in to work. The record also reflects that the Foreman did not know when the Claimant would be able to return to work. The Claimant ultimately did not return to work until July 21, 2003, the effective date of his dismissal. The Carrier asserts that it dismissed the Claimant from its employ because he did not report to work as scheduled during the period of July 11 through July 21, 2003 in violation of Rule 62D of the Agreement.
Therefore, the issues for the Board to consider and resolve are whether the Claimant was absent with "proper authority" and, if not, did the Claimant have a justifiable reason for not obtaining proper authority to be off work. Upon careful review of the record, we find no credible evidence to support the claim that the Claimant was properly on vacation during the period in question. Further, we find that there was sufficient evidence produced at the requested show cause Hearing to warrant the Carrier's determination that there was no justifiable reason for not obtaining proper authority to be off work. Form 1 Award No. 38366
The Organization contends that the Claimant requested and received permission from his Foreman to take leave during that time.' The Organization claims that the Carrier has an established practice of allowing employees to seek and gain approval for vacation from Foremen when supervisors are unavailable. This may be true, however, the Claimant failed to demonstrate that he actually had such approval from the Foreman. The Claimant also failed to put forth any evidence of a practice that permits leave to be approved after the fact.
The Organization makes procedural arguments that Rule 62D is irrelevant in this case and that Rule 68 applies. We disagree. It is long-standing precedent that Rule 62D is a self-invoking Rule and not disciplinary in nature. It administratively addresses situations such as this, setting the clear standard on acceptable and unacceptable absenteeism. The redeeming quality of Rule 62D for the employee is that it provides for the opportunity to request a Hearing with the Carrier to furnish a justifiable reason for why proper authority was not obtained. Neither Rule 68 nor Rule 80 has any bearing in this instance.
The Organization further claims the Claimant's absence was justifiable because he was under the care of health care professionals; however, there was no such evidence produced in the Hearing record. There was, however, uncontroverted evidence that the Claimant did not report to work on July 14, 2003 because he was incarcerated. The Carrier contends that the Claimant absented himself for more than five consecutive working days without proper authority in violation of Rule 62D. The Carrier maintains that the Claimant's violation automatically terminates his seniority rights and his employment with the Carrier. It is the Claimant's burden, upon his request, to demonstrate that his absence was, in fact, with proper authority. Other than his representative's unsubstantiated argument, the Claimant offered no testimony, witnesses or evidence to controvert that he had been incarcerated or that he
t After the Claimant had his mother call in for him, he arranged for his fellow employee to annotate the time records to reflect that the Claimant took July 11 as an approved safety day and July 14 and 15, 2003 as approved vacation days. However, none of those absences were scheduled or approved in advance. The record also does not reflect any evidence that anyone in a position of proper authority ever actually approved the Claimant's absences. It is clear that the Foreman was aware of the Claimant's predicament; however, the record does not clearly demonstrate that he "approved" the time being taken as proposed, tacitly or otherwise. Form 1 Award No. 38366
could have come to work had he known the Carrier would not approve his request to take leave: Strenuous advocacy by his representative alone is insufficient.
Several Awards have found that incarceration does not constitute an excusable or justifiable reason for absence from work. The Board understands and is cognizant of the desire to propound the quick fix and fiction suggested by the Organization. The fiction being that the Claimant was simply out on vacation when, in reality, he unexpectedly could not come to work. Unplanned, unscheduled, and inexcusable absences are the types of absences meant to be covered by Rule 62D. Therefore, it cannot be said that the Claimant is being unfairly forced into Rule 62D's venue. Although the Claimant had leave readily available for its proper use, the Board cannot and will not require the Carrier to allow the Claimant to circumvent the intent and purpose of Rule 62D by using "good" leave for an improper purpose.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.