On the incident date in question, December 23, 1983, Claimant, Clemons Brown, was assigned to the Illinois Division Trainman's Extra Board. According to his testimony at the investigation held on December 29, 1983, he telephoned Carrier Staff Officer Jamie Esaary who is in charge of she crew cellar's office at approximately 11:30 A.M. and attempted to lay off, explaining to Essary that he had his 8 year old son with him. In his testimony, Essary recalled that Claimant did telephone him on the morning of December 23 expressing a desire to lay off but that
the reason given was non-specific, to wit, that he had some family commitments he wanted to take care of. Essary recounted he told Claimant he would see what he could do for him and advised Claimant to call him back a little later. Essary stated that in' checking he found Claimant was about 4 times out on the board, that there was considerable operational activity that day (it being a holiday period), and that the whole board was getting exhausted. Essary testified that in his conversation with the Claimant that morning he, at that time, did not grant him permission to lay off and told Claimant that the railroad was going to run that holiday weekend and that the people on the extra board were needed. In his testimony, Claimant acknowledges he did not gain permission from Essary to lay off after contacting him in the morning.
At or about 2:50 P.M.. Claimant received a call from the crew caller assigning him to Train #245 (HSLAT) for 4:45 P.M. at Proviso, East 5. Claimant testified that he attempted to refuse the call by trying to explain his personal circumstances of having to watch his son, but that the crew caller hung up on him. Claimant acknowledges that in not being able to communicate his personal needs to the caller at this time that, in fact, the call was accepted. After being contacted by the crew caller, Clainiant next attempted to reach his ex-wife so that she could take care of his son, but she had already left wherever she was. Claimant testified he immediately began trying to reach the crew caller starting at about 3:05 P.M. but that he was unable to get through because the lines were busy and that when he did get through on the lines, the callers did not answer the phone. Claimant testified that he also called the dispatcher twice and the Local Chairman to explain his plight but to no avail. Claimant did finally reach the chief dispatcher and told him he did not want the job stuck and to get a brakeman out there. Claimant related further that he finally reached the crew caller at about 4:20 P.M. explaining that he had to watch his son and the crew caller advised him tfe would be sticking the job and that he would be written us. Claimant stated that he next called Essary back at about 5:00 P.M., recalling that was the agreed upon time ho Should call Essary from their discussion that morning. Essary testified he did not recall setting a specific time Claimant should get back to him, but ventured that he might have told Claimant he would be in his office until 5:00 P.M. In any event, Essary stated he did not hear from Claimant until after he had stuck the yob.
Claimant, in· his testimony, declared that had he been able to get someone to watch his son, he would have protected his assignment. Claimant further explained he did not move immediately to secure babysitting arrangements for his son aftee his morning conversation with Essary, as he felt there was some chance he could lay off, p1us the fact that given his placement on the extra board, he figured he would not be called out until about 8:00 or 9:00 P.M.
The record evidence reflects that Claimant has had a substantial problem with absenteeism and that the instant case arose just eight (8) months following his reinstatement on a strict leniency basis. The previous dismissal resulted from Claimant's failure to be available when called from the extra board.
It is noted that Carrier's Rule 702 and Agreement Rule 98 are pertinent to this case and respectively read as follows:
The Hoard, after hearing upon the whole record and ail evidence, finds that the parties herein are Carrier and Employee within the meaning of 'the Railway Labor Act, as amended, that this Board is duly constituteb by Agreement dated October 2, 1984, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearing held. Page 4