CASE NO. 10


PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) and
 DISPUTE ) BURLINGTON NORTHERN (Former Joint Texas Division)
 STATEMENT 1. That the Carrier violated the Agreement when
 OF CLAIM: they suspended Claimant J. E. Graysou for a
 period of five (5) working days, said suspen
 sion being excessive, capricious, and unjust.
 2. That Claimant J. E. Grayson be compensated for
 five (5) Gays' wage loss suffered account the
 Carrier's wrongful action.
 FINDINGS: By reason of the Memorandum of Agreement signed
 November 16, 1979, and upon the whole record and
 all the evidence, the Board finds that the parties herein are empioye
 and carrier within the meaning of the Railway Labor Act, as amended,
 and that it has jurisdiction.

 By letter of July 12, 1982, Claimant J. E. Grayson was notified of "suspension from the service of Fort Worth and Denver Railway Company for five (5) days, for violation of Burlington Northern Safety Rule 570, in connection. with your absence without authority from your position as trackman on June 30, 1982, as evidenced by formal investigation afforded you on July 8, 1982, at Teague, Texas."

 BN Safety Rules and General Rules, Form 15001, Rule 570 reads: "Employees must report for duty at the designated time and place. They must be alert, attentive and devote theaselves exclusively to the Company's service while on duty. They must not absent themselves from duty, exchange duties with or substitute others in their place without proper authority."
                                    PLB - 2535

                                    AWARD NO. 10 (page 2)

                                    CASE NO. 1_0


The transcript of investigation shows the following answers given by Claimant J. E. Grayson:

      "Q. Would you please state your full name, occupation and length of service?

      A. James Edward Grayson, laborer, four years and about six moths service.


Q. On Wednesday, June 30, 1982 were you assigned to the position of
      trackman Section W-109, Teague, Texas?

A. Yes, Sir.

 Q. On that day was your foreman Mr. James Grayson?
 A. Yes.

 Q. On Wednesday, June 30, 1982 was your assignment to have worked
 with other members of the Teague section or were you assigned to
 other duties?
 A. Other duties.

 Q. What were they?
 A. Bolt tightening machine.

 Q. At what location?
 A. Between Newby and Donie.

 Q. Who was your supervisor while performing that occupation?
 A. Elmer Jean Grayson, track supervisor.

 Q. Were you absent from your position on Wednesday, June 30, 1982? A. Yes, Sir.

 Q. Did you have authority to be absent?
 A. Yes, Sir.

 Q. And from whom did you obtain that authority?
 A. Preston Johnson. I asked him to notify Elmer Jean Grayson,
 supervisor, because I couldn't get in touch with him at the time.
 I didn't know his phone number.

 Q. Did Mr. Johnson actually rant you authorit~tdb~e aoRnnonfroma
 your position Wednesday, June 3U, 1982, or y
 authority from track supervisor E. J. Grayson for you to be absent?
 A. Be said he would tell Elmer Jean, evidently he didn't because he
 couldn't get in touch with him.

 Q. On Wednesday, June 30, 1982, when you were absent from your position
 were you in compliance with Rule 570? On that date did you have
 have authority to be absent?
 A. I thought I did, but I didn't." (Tr., pp. 8-9).
                                      PLB - 2535

                                      AWARD NO.10- (page 3)

                                      CASE N0.10


Foreman Preston Johnson gives the following testimony:

 "Q. Mr. Johnson, would you please state your full name, occupation
 and length of service?
 A. Preston Johnson, foreman, Normangee, W-106, occupation foreman,
 and I have 36h years service.

 Q. On Wednesday, June 30, 1982, trackman J.E. Grayson was absent
 from his position of trackman, Section W-109, Teague, Texas. Do
 you have any knowledge of Mr. J.E. Grayson's absence or did Mr.
 J.E. Grayson contact you in any way seeking permission to be ab
 sent?
 A. He called me the 29th at 10:00 p. m., and told me to tell Elmer
 ' Jean he wanted to be off to tend to some business on the 30th.
 I believe Elmer Jean was in Conroe and I couldn't call him that
 night because I didn't know his phone number, but he did call me
 the 29th at 10:00 p.m.

 Q. What was the reason for Mr. J.E. Grayson requesting permission?
 A. He told me motor filter on his car was under a guarantee and he
 said if he kept driving it and not get it fixed, he would have to
 pay for it himself. They had done told him to bring it in and
 the man would pay for it, and that is what he told me.

 Q. Was Mr. J.E. Grayson's phone call to you in the nature of a
 request to be absent or in the nature'of advising you to get word
 to his foreman that he would be absent?
 A. He wanted to request to get word to Elmer Jean.

 Q. Referring to Elmer Jean you mean Mr. E. J. Grayson, the track
 supervisor for that territory?
 A. Yes, sir.

 Q. (By Mr. J. W. Reefer, System Representative, BMWE) Mr. Johnson,
 do you know if Mr. J.E. Grayson, when he got in contact with you
 by phone, did he tell you that he had tried to call Elmer Jean's
 number and kept getting a busy signal?
 A. Yes, he told me that." (Tr., pp. 6-7).

 The evidence of record is clear that Claimant did not attempt to obtain authorization for his absence on June 30, 1982 until 10:00 p.m. on June 29th. When Claimant spoke to Mr. Johnson, he understood that it was necessary to obtain authorization from Mr. E. J. Grayson, the track supervisor, and the Claimant understood that Mr. Johnson, foreman, Normangee, W-106, was not in position to authorize Claimant's absence on June 30.
                                      PLB - 2535

                                      AWARD NO. LO (page 4)

                                      CASE NO. 10


There is some question whether Claimant in fact did call "Elmer Jean's number and kept getting a busy signal" or whether Claimant did not in fact call Elmer Jean because he "didn't know his phone number" (Tr., p.8).

 The Board finds, on the evidence before it, that Claimant made his efforts to obtain authorization for absence on June 30, 1982 at the late hour of 10:00 p. m. on June 29. Claimant was unsuccessful in his efforts. He knew that "proper authority" under Rule 570, in the circumstances, was Elmer Jean Grayson, the track supervisor. Claimant had the choice of not absenteeing himself on June 30, or taking a chance that Mr. Johnson, like Claimant, might not be able to reach Elmer Jean Grayson and obtain the required authorization. Claimant could not, under Rule 570, in the circumstances of record, completely remove himself from the application of Rule 570 by calling Mr. Johnson and expect Mr. Johnson to satisfy Claimant's responsibility. Perhaps it would have been wiser for Mr. Johnson to have made this plain and clear to Claimant and to tell Claimant that he was taking a risk; but Claimant should have fully realized this, nonetheless.

 In the circumstances, was the discipline given to Claimant, of five (5) days' suspension, excessive? Absenteeism is a serious offense, and in a proper case may result in dismissal of an employee. The record shows that Claimant's work record contained censure for violation of Burlington Northern Safety Rule 665 and 30-day suspension for violations of Rules 661 and 665. The Carrier gave Claimant the five (5) day suspension in the instant matter, and not a more severe discipline, in recognition of Claimant's efforts to obtain proper authorization for his absence on June 30, 1982. In the circumstances, the five (5) day suspension was not arbitrary nor excessive.

                      A W A R D


                1. The Carrier is not in violation of the Agreement.


                2. The claim is denied.


                JOSEPH LAZAR, CHAIRMAN NEUTRAL MEMBER


                                64 ; 714 a V.,


S. E. FLEMING, EMPLOYE MEMBER B. . MASON, CARRIER MEMBER

 DATED: