PUBLIC LAW BOARD N0. 2206
AWARD N0. 76
CASE N0. 81
PARTIES TO DISPUTE:
BURLINGTON NORTHERN RAILROAD
and
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The dismissal of Section Laborer K. A. Froelick May 2, 1980,
was without just and sufficient cause and wholly disproportionate to the alleged offense. (System File B-Y-138C).
2. Section Laborer K. A. Froelick be returned to service with
all seniority unimpaired and paid for all time lost.
OPINION OF BOARD:
At the time of his dismissal Claimant was employed as a Sectionman on
the Medora, North Dakota section. He had a seniority date of April 6, 1970.
On April 1, 1980 Carrier hand-delivered to Claimant a notice of investigation into charges of his failure to protect his assignment on March 25, 26,
27, 28 and 31, 1980. Following a formal investigation on April 8, 1980 at
which Claimant failed to appear, he was found guilty of the charge and dismissed from service.
It is clear that Claimant did not show up for work on the days in
question. The Organization does not dispute this and offers no valid excuse
for his absence. The fact that he was incarcerated at the time can not be
held to be a proper justification for his absence. See PLB 2206-3 and
PLB - 2206, Awd. 1176 2
Awards 3-12992, 3-18816 and 3-19568. Consequently, Carrier was correct in
assessing discipline for the absences.
The Organization contends, however, that Claimant was not given a fair
and impartial investigation, thus invalidating the entire disciplinary action.
We find no evidence in the record to support this contention. The mere fact
that he was not present at the investigation following proper notice does not,
without more, invalidate the procedure. There is no evidence that Carrier
acted arbitrarily and capriciously in failing indefinitely to postpone
Claimant's hearing. Carrier was under no obligation to await Claimant's
uncertain release from incarceration to ascertain whether he failed to protect his assignment on the dates in question.
No valid justification was presented for Claimant's absence on the several
days in March 1980. Given the nature of this proven offense and
a
poor prior
discipline record, including previous suspensions without pay for absence
without leave and failure to protect his assignment, we have no recourse but
to deny this claim.
AWARD
Claim denied.
Carrier Member
--'
Employe Member
Dana E. Eisc'h n irman
Date: ' <
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