Brotherhood of Maintenance of Way E mplo yes )
Division - JBT Rail Conference )
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And )
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Norfolk Sout hern Railway Company (Former )
Case No. 221 Award No. 221
_No_rfol_k &_W_es_tern_R_ailw_ay_Co_mp_an_y) _ _ _ _ _))
Rich ard K. Hanft, Chairman and Neutral Member
D. M. Pascarella, Employee Mem ber
D. L. Kerby, Carrier Member
ST AT E MENT OF CLAI M:
" Claim of the System Committee of the Brotherhood that:
The Carrier' s discipline (dismissal) of Mr. R. Hayman, issued by letter dated September 2, 2015, in connectio n with his alleged excessive absenteeism and failure to protect his assignment in that he was absent from his assignment without permission or authorization from proper authority and without notifyin g his superv isor of his need to be absent since Friday, J une 19, 2015 and continuing, was unjus t, not s upp o rted by the testimony brought out at the investigation and not pursua nt to a fair and impartial investigation (Carrier's File MW-DECR-15-56-LM-523 NWR).
J\s a co nsequence of the violation referred to in Part 1 above, Claimant R. Hayman shall be allowed to return to work with all rights and privileges."
FINDINGS:
Special Board of Adjust ment Board 1048, upon the whole record and all of the evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.
T his Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other cases.
Special Board of Adjustment No. 1048
Award No. 221
After thoroughly reviewin g and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claim ant in this matter was regularly assigned to an electric welder/ CDLB position in the Bement, Illinoi s E lectric Welding Gang. Claimant had seniority da ting back to May 28, 2011. On Friday, J une 19, 2015 Claimant failed to report for duty and protect his assignmen t. Claimant did not contact his supervisor to request permission to be absent. No Carrier o fficial has heard from Claimant since Thursday, June 18, 2015.
O n July 1 , 2015 a letter was issued citing Claimant to an investigation for failure to pro tect his assignment and being continually absent since June 19, 2015. The investigation occurred on August 20, 2015 and Claimant failed to appear, although he was represented by th e O rganizatio n. At the hearing the fact that Claimant was, and had been since June 19, 2015 incarcerated was made known. The inves tigation proceeded in absentia and Claimant was found responsible for excessive absenteeism and failure to protect his assignment. As a result of the findings, Claimant was dismissed from service by letter dated September 2, 2015.
The Organization maintains that the discipline assessed cannot stand because Claimant was denied his contractual right to a fair and unbiased hearing in that the investigation was held in abset1/ia even though evidence of Claimant' s inability to attend the investigation was made known to the Carrier and the Organization objec te d to the h o ldin g o f the investigation at that time.
Rule 30 of the Parties Agreement, as modified by a Memorandum of Understanding of the System Di scipline Rule provides, in relevant part:
" . . .If the charged employee fails to attend the duly sc heduled investigation, without having provided evidence of good cause for such failure to attend , the Carrier may p ro cee d with the investigation in absentia and such procee ding in absentia shall not constitute the basis for any claim with respect to such employee's right to contractual due process ... "
Moreover, a charged employee's incarceration has been held not to constitute cause for failing to appear at an investigation. See 3 NRAB Award 24339, BRS v. SCLRC Q)e te rsen).
Hence, the Organization's argumen t that Claimant was denied his right to a fair and unbi ased hearing must fail.
T he Board can find no basis to disturb the decision made on the property. T he Claim is denied.
Spl·cial BonrJ of .\ J justnu:nt No. Hl-l8
.\w:mJ No. 221
AW,\ RD :
The Claim is J cnieJ .
Ahdmd K H,n
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D . M. Pascarella, Employee lcmlx:r D. L Kcrhy, Carrier Member Dared at C:hic:tgo , Illinois h:hru:iry 7, 20 I H