Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39921
Docket No. MW-39559
09-3-NRAB-00003-060348
(0G-3-348)

The Third Division consisted of the regular members and in addition Referee Martin EL Malin when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - ( IBT Rail Conference PART TO DISPUTE: ( (National Railroad Passenger Corporation (Amtrak)

STATEMENT OF CLAIM:





FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form I Page 2

Award No. 39921
Docket No. MW-39559
09-3-NRAB-00003-060348
(06-3-348)

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.



involved herein.



By letter dated May 20, 2005, the Carrier notified the Claimant to appear for a formal investigation on May 26, 2005. The notice charged the Claimant with violations of Amtrak's Standards of Excellence provisions regarding attendance to duties, teamwork and attendance policy progressive discipline with pct to having II or mare days absent in a 12 month period. It specified that after a verbal counseling and a letter of counseling, the Claimant was absent on: January 13 and 24, 2005; February 13, 14, 15, and 16, 2005; March 10, 20 and 29, 2005; April 18 and 28, 2005; and May IO and 25, 2005. The Bearing was convened as scheduled. The Claimant failed to appear and the Bearing proceeded in absentia over the Organization's abjection. On June I, 2005, the Carrier notified the Claimant that the Bearing Officer had found him guilty of the charges and that he was assessed a three-day suspension deferred for six months and a one-year disqualification from holding any position as Foreman. During handling on the property, the disqualification was reduced to six months.


dispute





The Organization contends that to the extent that the charges alleged absences prior to April 20, 2005, i.e., 30 days prior to the May 20, 2005 notice, the charges were not timely. Thus, in the Organization's view, the only portion of the
Form 1 Award No. 39921
Page 3 Docket No. MW-39559
09-3-NRAB-00003-060348
(06-3-348)

charges that was timely concerned the alleged absences on April 28 and May 10 and 25, 2005. We do not agree. As recognized in Special Board of Adjustment No. 986, Case 11, "By its very nature, excessive absenteeism is a cumulative offense; and, thereby, absences prior to 30 days from the date of the notice of investigation are eligible to be included in the charge of excessive absenteeism." Ia the instant case, the charge concerned the accumulation of 11 or more absences in a 12 month period. The 11th absence allegedly took place on April 28, 2005, within 30 days of the notice of charges. We conclude that the notice was timely.


The Organization contends that the Carrier violated the Agreement by proceeding with the Hearing in absentia. We do not agree. The record reflects that the notice was sent via Federal Express to the Claimant's residence on May 20 and was received at the Claimant's residence on May 23, 2005. The Claimant did not contact the Carrier or the Organization to request a postponement of the Investigation and the Claimant's representative, upon inquiry from the Carrier, indicated that he tried to contact the Claimant that morning without success. The record contains no evidence justifying the Claimant's failure to attend the Investigation. We conclude that the Carrier acted properly in proceeding with the Hearing in absentia.


The Organization contends that the Hearing Officer was biased against the Claimant. The Organization bases its contention on the Hearing Officer's comments in denying the Organization's objection to proceeding in absentia. The Hearing Officer stated:


Form 1 Award No. 39921
Page 4 Docket No. MW-39559



The Organization argues that the above quoted ruling reflects that the Hearing Officer had pre-judged the Claimant's guilty. We do not agree. The Hearing Officer's reference to the Claimant being "up for an attendance issue;" while perhaps a poor choice of words, does not mean that the Hearing Officer had already determined that the Claimant was guilty of the charges. We understand "up for an attendance issue" to mean "charged with an attendance violation," and as such merely states the facts of the charges and does not reflect pre-judgment. The remainder of the Hearing Officer's statement was accurate. The Claimant did not attend the Hearing, the time was already 50 minutes after the scheduled start of the Hearing and the Federal Express record showed that the notice had been received at the Claimant's residence.


The evidence clearly established that the Claimant was in fact absent on the dates charged. The Carrier clearly proved the charge by substantial evidence. The penalty imposed was in keeping with progressive discipline and was not arbitrary, capricious or excessive.




      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 31st day of August 2009.