n NICKEL PLATE, LAKE ERIE AND WESTERN,
j.



                          (MW-BVE-77-85).


                          Case No.~


      PARTIES TO DISPUTE:


          Brotherhood.of Maintenance of Way Employees vs Norfolk and Western Railway Company ,


      STATEMENT OF CLAIM:


          1. Carrier violated the effective Agreement dated February 1, 1951, on November 17, 1977, when it dismissed claimant R. B. Molina from service.


          2. The dismissal of claimant was arbitrary and capricious. The carrier failed to exercise discretion and fair judgment in assessing the discipline. The claimant now be rests ed to service with seniority and benefits unimpaired and payment allowed for the assigned working hours actually lost, less any earnings in the service of the Company.


      FINDINGS:


      This Board upon the whole record and all the evidence finds that:


      The Carrier and the employee involved in this dispute are respectively Carrier and employee within the meaning of the Railway Labor Act, as amended.


          This Board has jurisdiction over the dispute involved herein.


      OPINION:


          Claimant was classified as a Laborer with about five months


      service at the time of his removal. Of hispanic origin, the


      Claimant was apparently incapable of communicating in English.

                                            Awd. l#44 - 1837

For the period of ,Tuly 1. to September 23, 1977, the Claimant was- absent thirteen full- days and partially absent four or five other days; the Claimant admitted. as much at the hearing through his interpreter. The Claimant contends he was sick one such day. According to the Carrier,the Claimant offered explanations for two such absences.

      According to the Organization, the Carrier was obliged


to overcome the language problem and that tlrJ Claimant was -
 not properly apprised of the consequence of such continued
 absenteeism. It also asserts error in the conduct of the
 investigation.
 GTe are not moved.by the Organization's contentions of error by-the .Carrier. The. Carrier-may have been ill-advised in hiring an individuaL.who.inight have-a problem in receiving instructions, but the. record evinces that one or more fellow employees were able and available to effect such translations. The Claimant offered absolutely no explan ation (to direct questioning that was translated) as to his, whereabouts on the other dates in question. Lt is asking too much to presume that the Claimant would- not be aware he was obliged to be regular in attendance Under the circumstances, we affirm the Carrier's actions.

                          _2_

                                            Awd. 144 - 1837


AWARD:

      Claim is denied.


                r

                n.

,JAmes F. Scearce
 Neutral Member ,
 ~.rs
 G. C. Edwards W. E. LaRue
 Carrier Member Organization Member

 Dated a this, day of yg 8

 -3-