t




NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
 * CASE NO. 9
 -and- * AWARD NO. 9
 *
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 *

 Public Law Board No. 3038 was established pursuant to the provisions of Section 3; Second (Public Law 89-456) of the Railway Labor Act and the applicable rules of the National Mediation Board.
 The parties, the National Railroad Passenger Corporation (Amtrak, hereinafter the Carrier) and the Brotherhood of Maintenance of Way Employes (hereinafter the Organization), are duly constituted-carrier and labor organization representatives as those terms are defined in Section 1 and 3 of the Railway Labor Act.
 After hearing and upon the record, this Board finds that it has jurisdiction to resolve the following claim:



                                    NRPC and BMWE

                                    Case/Award 9

                                    Page Two


Mr. N. J.- DeLucia, hereinafter referred to as Claimant, was employed by Amtrak on August 1, 1977, as a Trackman on the Carrier's Boston Division. At the time of the incident here involved he was working as a Trackman on the Boston Division.
 By letter dated March 7, 1983, Claimant was notified to attend a trial in connection with the following charge:

    "Violation of Absenteeism Agreement by and between National

    Railroad Passenger Corporation (Amtrak) and the employees

    represented by the Brotherhood of Maintenance of Way

    Employees in that you were absent on:


    January 20, 1983; February 2, 3, 7, 9, 14, 17, 23, 24 and

    25, 1983; and March 1 and 2, 1983."


The trial was held as scheduled. The Claimant and his duly authorized representative were present, indicated a willingness to proceed and were permitted to make statements and present evidence on behalf of the Claimant.
 Claimant was notified by letter dated March 18, 1983, that he was assessed the discipline of "immediate dismissal - to become effective on receipt of this letter."
 Claimant appealed this matter which has been progressed through Carrier's highest officer designated to handle such matters.
 The Absenteeism Agreement of October 26, 1976, which this Board has reviewed many times, establishes a three step progressive disciplinary system for absences from work without permission. Rule L of the Carrier's Rules of Conduct also provides for discipline for absence from duty without proper authority.
                                    PLB No. 3038

                                    NRPC and BMWE

                                    Case/Award 9

                                    Page Three


The Absenteeism Agreement provides for a written notice (first offense), a ten (10) day suspension (second offense) and dismissal (third offense in the twelve month period) for absences without permission.
 The record shows that the Claimant received a written notice on January 6, 1983, pursuant to the Absenteeism Agreement for various absences without permission. This notice is unchallenged. On February 9, 1983, the Claimant received a Notice of Discipline for being absent without permission for a second series of numerous absences; this notice referenced Rule L and imposed a ten (10) day suspension (5 actual and 5 suspended) for the infraction. This discipline was not challenged.
 In the record before this Board the Carrier charged and proved that the Claimant was absent without permission for a series of dates in January, February and March of 1983. The Claimant admitted that many of the charged absences were due to "personal problems out of my control" associated with his being involved in a divorce. The Organization's contention that the Carrier must prove that these absences were without authority is rejected by the Board.
 After the Carrier has charged an individual with unauthorized absences, if authorization for some or all of the absences was obtained, it becomes the employee's obligation to raise those exculpatory defenses. The Claimant did not raise such defenses; rather he admitted that his absences were due to
 ,

                                      PLB No. 3038

                                      NRPC and BMWE

                                      Case/Award 9

                                      Page Four


    personal problems and he offered no legitimizing causes for his absence from duty.

    The only remaining question for this Board is whether the Carrier, by failing to cite the Absenteeism Agreement as opposed to Rule L in the February 9, 1983 Notice of Discipline, violated the progressive disciplinary scheme of the Absenteeism Agreement. Technically, that argument by the Organization is a good one. There is some reason to believe that the Claimant, under the terms of the Absenteeism Agreement, was entitled to progressive notice of where he stood in terms of the Agreement's graduated discipline steps. On the other hand, we note that this contention was not raised on the property and that the Carrier had sufficient cause based upon the Claimant's record of excessive absenteeism not only to discipline the Claimant for his January, February and March 1983 absences but to discharge the Claimant due to his atrocious record of absenteeism.

    Even though the Organization did not specifically raise the argument regarding the implied notice provision of the Absenteeism Agreement until it filed its submission before this Board, the discharge was effected under the Agreement and this Board must give some weight to the Agreement's concept of progressive discipline. Again, at the same time the Claimant's

                                1


                                    PLB No. 3038

                                    NRPC and BMWE

                                    Case/Award 9

                                    Page Five


horrendous absentee record does not justify any award of back pay-
 Accordingly, the claim will be sustained in part and denied in part.

 AWARD: Within fifteen days of the receipt of this Award, the Claimant will be restored to service without back pay and with seniority unimpaired. He is on notice that while out of service his status under the Absenteeism Agreement was tolled so that he now returns to service, if physically qualified, and he may be discharged from service for the third infraction of the Absenteeism Agreement if his infraction occurs during the next nine and one-half months from his return to service.

 L. C. Hricza~ W. E. LaRue
 Carrier Member Organization Member

                                      lO ~L2~d rY

                  Richard R. Kas er

                  Chairman and Neutral Member


September 28, 1984
 Philadelphia, PA