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.
On May 9, 2005, the Carrier directed the Claimant to report for a formal Investigation on May 17 concerning the following charge:
February - 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28
March - 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30
April - 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, 26, 27, 30 May - 1, 2, 3, 4, 7, 8
The Claimant's Hearing commenced May 17, was recessed and continued on May 24, was again recessed and continued the next day and concluded on July 29, 2005. On August 4, 2005, the Claimant was notified that he had been found guilty as charged and was dismissed.
It is the position of the Organization that the record indicates that the Claimant previously had received discipline for missing work on May 18, 19, and 20, 2004, as well as on January 22, 23, 25, 26, 27, 29 and 30, 2005. The Organization argued that the majority of the alleged dates should not be included in the charge because they were already addressed in prior Investigations subjecting the Claimant to double jeopardy. The Organization further objected to the fact that the charges were revised. It concluded that the discipline should be set aside and the claim sustained as presented. Form 1 Award No. 40446
The Carrier argued that it was proven at the formal Investigation that the Claimant was absent 50% of the time between April 28, 2004 and May 8, 2005, and he offered no mitigating reasons with proof as to why he was not at work. Furthermore, it argued that the record indicates that the degree of discipline assessed was not excessive taking into account his past poor work record. In closing it stated that the dismissal was appropriate and should not be disturbed.
The Board thoroughly reviewed the transcript and the record evidence which constituted the third of three cases involving the Claimant. In this case, as in the previous two cases addressed by the Board, the Claimant did not appear at the onset of the Hearing which commenced on May 17, 2005. The Hearing was recessed and continued on May 24 and the Claimant appeared and was present until its conclusion.
The Organization argued that several dates listed in the instant Notice of Investigation should not be included because they were addressed in prior Investigations. It is a thoughtful argument on behalf of the Claimant, but a careful scrutiny of the record reveals that it is incorrect because none of the dates cited in the charges was connected with time served for discipline, nor is any date which the Claimant was alleged to have been absent without authority listed.
We will next address the Organization's argument that revision of the Notice of Investigation was improper. The record substantiates that the initial Notice of Investigation was dated May 9, 2005, and was subsequently revised on May 12, to include dates in May 2005. Additionally, some other dates were removed while others were added to the list. There is no prohibition in Rule 53 against the revision of charges if done for the purpose of correction provided it is done within the time limits. The charges were exact and timely reissued. Therefore, it was not a violation of the Agreement (Award 1 of Public Law Board No. 4955).
The Board, having determined that the Claimant was not denied his Agreement due process rights, turns its attention to the merits. Our review of the record indicates that on the dates listed in the Notice of Investigation the Claimant was never on medical leave, nor did he make a formal request for such. However, even assuming for the sake of argument that he had been legitimately off on some of the dates listed, employees can be disciplined for excessive absenteeism even if advance notice for the absence has been given, and even if absent for legitimate reasons (Second Division Award 9865). Whether the Claimant thought he had valid reasons to miss work on some of the dates Form 1 Award No. 40446
included within the charges does not relieve him from the fact that an employee is expected to work on a regular basis; otherwise, he may be subject to discipline. The Claimant's attendance record over the aforementioned time period was unsatisfactory; it reflects the fact that he had essentially become a part-time employee because he was absent in excess of 50 percent of the time. It is clear that the Carrier met its burden of proof that the Claimant was guilty of excessive absenteeism.
The only issue remaining is whether dismissal was proper. The Claimant had approximately 16 years of seniority at the time of the incident with a less than stellar work record. Despite the fact that he had substantial time with the Carrier, his personal record shows that he had been dismissed twice before (the first time in January 1993 and the second time in November 199$). In addition, he had a long list of other disciplinary actions administered against him. The Carrier attempted to use progressive discipline to alter the Claimant's behavior to no avail and in this instance he was again at the Step 5 Level under the Carrier's Progressive Discipline Policy which mandates dismissal. Therefore, the Board finds and holds that termination in this instance was appropriate because it was not arbitrary, capricious, or excessive.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.