Public Law Board No. 6428
Case No. 2
Award No. 91
Sheet Metal Workers' International Association
and
CSX Transportation Company
According to the record which has been presented herein, on December 16, 1988, Claimant was assessed a ten (10) days deferred ("overhead") suspension for "... excessive absenteeism from assignment in that he was absent, tardy or left (work) early from January 3, 1988 through November 3, 1988." On May 11, 1989, Claimant was assessed a five (5) days actual suspension due to "... excessive absenteeism during period January 17, 1989 through and including April 23, 1989." At that same time, Claimant's previous December 16, 1988 ten (10) days deferred ("overhead") suspension was converted to a ten (10) days actual suspension "... due to less than six (6) months having elapsed since probationary period beginning on 12-16-88."
According to Carrier, on or about May 13, 1992, Claimant's General Foreman counseled him about his (Claimant's) tardiness and absenteeism. It does not appear, however, that any additional discipline was assessed against Claimant at that time.
On Sunday, May 24, 1992, Claimant was assigned as a Sheetmetwl Worker/Pipefitter at Carrier's Bair Yard Car Shop Ready Track; and on that day, he was involved in an accident involving a runaway locomotive. The details of that accident and various other related incidents which occurred thereafter have been included in this Board's Award No. 1; and do not need to be reiterated at this point. Suffice it to say, however, that subsequent to said accident, Claimant continued to work, despite experiencing some minor pain; and he did not report that he had been injured in said accident or file an "Employee's Report of Personal Injury or Occupational Illness" form with Carrier until July 15, 1992.
Between Claimant's May 13, 1992 counseling session with his Supervisor and his marking-off sick on July 11, 1992, due to his work related injuries which were allegedly sustained by him in the May 24, 1992 on-the-job
accident, Claimant was docked one and one-half (1%s) hours for lateness on May 17, 1992; one-half (~5) hour for lateness on May 18, 1992; two (2) hours for lateness on June 6, 1992; one (1) hour for lateness on June 28, 1992; and
one-half (15) hour for lateness on July 1, 1992 (Tr. pp. 5-6). Because of his marling off sick for the period of July 11 through July 28, 1992 (again
allegedly due to the May 24, 1992 accident), on July 28, 1992, Carrier sentClaimant a certified letter advising him to appear at a formal investigative hearing on August 11, 1992. Said letter indicated that Claimant was being charged with excessive absenteeism; and said letter further indicated that
2 hn. 1 hr.
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October 9, 1992, with Claimant present and offering testimony. Claimant's hearing in the instant case was conducted on the same day immediately after the conclusion of another hearing concerning Claimant's alleged failure to promptly report his May 24, 1992 on-the-job injury which was the subject matter of this Board's previous Award No. 1.
As a result of Claimant's second investigative hearing which was held on October 9, 1992, in a letter dated October 16, 1992, Claimant was advised by Carrier that he had been found guilty of excessive absenteeism as charged; and that, as a result, he was dismissed from Carrier's service.
ClaimantlOrganization filed a timely complaint on Claimant's behalf in protest of Carriers second dismissal of Claimant. Said claim, for reasons which will be discussed more fully hereinafter, was denied by Carrier, and the matter was appealed by Organisation throughout all of the remaining steps of the parties' negotiated grievance procedure. Thereafter, the matter was appealed to arbitration by Organization; the undersigned Board yeas properly constituted and authorized to hear and decide this matter; and pursuant to hearing, the matter is now properly before this Board for resolution.
Organization's basic contention in this dispute is that Claimant was treated in a grossly unfair manner by Carrier. Organization predicates this assertion upon the fact that Carrier dismissed Claimant for excessive absenteeism, subsequent to Carrier's previously also having dismissed Claimant for failing to report his May 24, 1992 on-the-job injury in a timely manner (Public Law Board No. 5428, Award No. 1). According to Organization, such treatment of Claimant by Carrier is "... like hanging a man and then shooting him an hour later just to make sure he is dead."
Organization further objects to the propriety of Carrier's consideration of Claimant's attendance record between January 12, 1992 and his counseling date of May 13, 1992. In this regard, Organization believes that the admission and consideration of such evidence by Carrier was totally improper because the counseling session itself was discipline for the previous cited infractions, and to later resurrect those same charges constitutes double jeopardy; and, more importantly, according to Organization, Claimant's attendance improved dramatically after the May 13, 1992 counseling session, thereby serving as proof that the discipline which was intended by the counseling session had a successful effect upon Claimant. Still yet further regarding this same point, Organization also objects to Carriers admission into evidence and consideration of Claimant's attendance record between July 11 and 28, 1992, because, according to Organization, Carrier knew full well that Claimant was off work due to his injuries which were sustained by him on May 24,1992 as a result of the on-the-job accident.
In addition to the foregoing procedural contentions, Organisation also argues that Claimant was further treated unfairly by Carrier in this matter because no other employee has ever been cited or disciplined by Carrier for excessive absenteeism who was off work due to a work-related injury. Organization attributes this disparate treatment to the fact that Carrier is attempting to rid itself of an injured employee; and further because Carrier is fearful that Claimant might file a lawsuit against Carrier for the on-the-job injury(ies) which was/were sustained by him as a result of the May 24, 1992 accident which occurred at the Barr Yard Car Shop Ready Track.
As its final significant area of argumentation in this case, Organization contends that Carrier improperly dismissed Claimant for excessive absenteeism because Carrier does not even have a written absenteeism policy
upon which to evaluate/assess the employees' attendancelabsenteeism records.
Carriers initial contention in this dispute is that Cl> >~t was afforded a fair and impartial hearing as is required by Rule 26 of the parties Schedule Agreement. In particular, Carrier maintains that the Hearing Officer properly admitted into evidence at the investigative hearing, Claimant's past attendance record; and further that Carrier properly considered Claimant's previous disciplinary assessments when determining the appropriate amount of discipline which was to be assessed in the instant case. Moreover, Carrier also maintains that it was proper for Carrier to consider the dates of Claimant's absences related to his personal on-the-job injury when assessing discipline herein.
Carrier next argues that it is well established in the railroad industry that excessive absenteeism, regardless of the reason for said absence(s), is a dischargeable ofense.
Carriers final significant area of argumentation in this case is that the assessment of the penalty of dismissal was clearly justified, given Claimant's demonstrated pattern of numerous tardinesses and absences; and further given Claimant's prior disciplinary assessments for similar actions, and the fact that Claimant has been given "every consideration" by Carrier in this case.
After carefully considering all of the arguments which have been proffered by the parties in support of their respective positions in this controversy, the Board is persuaded that Organizations procedural objections to Carriers handling of this matter, are without merit. Accordingly, the Board concludes that the Hearing Offices properly entered into evidence at the investigative hearing evidence of Clpi*_ant's prior
attendance record; and Carrier later properly considered said evidence when attempting to determine whether excessive absenteeism had, in fact, occurred, and, if so, the appropriate amount of discipline to be assessed. Furthermore, Carrier is also correct in contending that Management may cite an employee for excessive absenteeism, even if that employee is unavailable for work for an otherwise good reason. In this regard, it does not matter whether the employee was on a "frolic" or was "home sick in bed." If that employee is unavailable for work, then s/he may be disciplined, up to and including dismissal, for excessive absenteeism. Arbitral support for the above posited conclusion, both within the railroad industry and in all other types of employment relationships as well, is both extensive and comprehensive; is undoubtedly well known by the parties herein; and, therefore, does not need to be reiterated by this Board at this time.
Still yet further, regarding another of Organization's procedural objections in this matter, a written policy concerning excessive absenteeima by employees is not required of Carrier, since it is well established in the common law of railroad industrial relations that excessive absenteeism is a disciplinary offense. Moreover, Carrier obviously has exercised its managerial authority on numerous previous occasions in similar such situations without any apparent objection from Organization; and this Board cannot see any difference between those previous situations and that which is involved in the instant case.
Despite having made the preceding determinations, and despite the fact that the Board is of the opinion that Carrier has proved that Claimant has committed a de facto violation of Carriers absenteeism policy, the Board, nonetheless, is also of the opinion that the assessment of the penalty of dismissal in the instant case was itself excessive and, therefore, was
PUBLIC LAW BOARD NO. 5428
DISSENT OF CARRIER MEMBER TO AWARD NO. 2
The majority erred in its decision to restore the Claimant to service in that Mr. Moore was clearly guilty of continuing a pattern of excessive absenteeism, after being disciplined twice previously for the same type of offense. Under these circumstances, the Claimant's dismissal was fully justified. The Board erred, further, in reducing the penalty to a sixty day suspension. While the Board concurred completely with the Carrier's finding of guilt, it determined that the penalty was too harsh. Numerous awards have held that unless the discipline assessed by a Carrier is arbitrary, capricious or unreasonable, it is not the function of the Board to modify it. Among those awards are the following:
In view of the clear finding of guilt, supported by the Board, of the serious charges at issue, the discipline of dismissal was fully justified and should have been upheld.