I

                  2. That, accordingly, the Cattle: be ordered to reimburse Laborer J. Egger for 90 days lost wages."

` FxNDxNCS:
 ' The Board, after hearing upon the whole record and, all the
          evidence, finds that the parties herein are Carrier and Employee

          within the meaning of the Railway Labor Act, as amended: this

          Board has jurisdiction over the dispute involved herein: and, the

          parties were given due notice of hearing thereon.


          The claimant, an employee of the Carrier for 10 years, was given a 90-day suspension from service following a company hearing and a determination by the carrier that he was guilty as charged of the following offense: "Being absent on November 30, December 1, 2, 3 and 4, 1988, which, in light of your previous record, represents excessive absenteeism."


          There is no question that the Claimant had personally reported off by telephone to the Car Department account alleged sickness on November 30, 1988 and December 1, 1988, or two of the dates in


i
          question.


          In regard to the other dates of charge, i.e., December 2, 3 and 4, 1988, the claimant asserted at the company hearing that he had his girlfriend, who is also an employee of the Carrier, report him off sick on each such date.


          Contrary to the claimant's contentions, the carrier's principal witness said that the Carrier had not received any communication from the Claimant's girlfriend about the Claimant not being able to report for work account sickness, or any other reason, as concerned these latter dates of charge.


          At the company hearing the Claimant asked if there was any way to get a postponement to have his girlfriend testify. This request

          'was denied by the hearing officer. He noted that the trial had already been rescheduled from December 8 to December 30, 1988 as

                                    1

56N rtyN · F10 -4h, AWARD NO. 11

CASE NO. 31

 the result of the Claimant having failed to appear on the earlier
 date scheduled for the hearing and that the Claimant, having been
 initially notified that he had the right to produce witnesses on
 a his behalf, had sufficient time to have meantime arranged for the
 presence of any desired witness. This Board finds no valid
 reason to dispute the decision of the hearing officer or to hold
 that such action constituted reversible error as concerns a right
 to a fair and impartial hearing.
 k
 The Claimant contended that he had not arranged for the presence
 of such a witness because he read the charge as being related to
 his merely being absent from work and not to a failure to have
 called in to report such absences.
 This Board finds no merit in the Claimants argument. In this
 respect, we find it significant that at the company hearing, in
 defense of his position on the charge, the Claimant said: "I
 called in the first two days but my doctor put me on medication
 for ear infections and it made me sleep a lot so the clerk in the
 Harmon Shop who I've lived with for 8 years, called in every day
 for me." Clearly, this statement by the Claimant recognized the
 charge as being related to his failure to have called in or given
 the Carrier required notice of any intended absences from work on
 the days in question.
 The Claimant also offered argument that he could not call in to
 the carrier because his doctor had put him on medication for ear
 infections. In support of his contention, the Claimant offered a
 medical return to duty statement from a physician at the Ossining
 Open Door Health Center. This statement, dated December 6, 1988,
 was issued two days following the last date of absence from work.
 It reports that the Claimant was "examined in a state of illness"
 and that the nature of the problem was "infected sinuses." Al
 though a notation says that such illness "started on November 30,
 1988," there is nothing to show that the Claimant had sought or
 received any medical treatment, much less medication, on this
 earlier date. Moreover, even assuming arguendo that the Claimant
 was on medication, this Board fails to comprehend the basis for
 the argument that the taking of medication for infected ears or
 infected sinuses prevented the Claimant from calling in to report
 off sick.
 In the circumstances of record, it is evident that the Claimant
 had failed to properly notify the Carrier of his intended ab
 sences from work on at least three of the five dates of charge.
 Turning to the extent of discipline. The Claimant has an exten
 sive discipline record. He had been given several past warnings
 about an unsatisfactory attendance record. He had been assessed
 discipline on 10 separate occasions for absenteeism and other
 rules violations. In the past year alone he had been assessed .a
 40-day and 7-day suspension from service and had also been given
    - a 45-day record suspension, all in connection with his attendance


                                    2

S6xf GN4- Mnl-Fee Awry No. 11

CASE NO. 31

 problems. Accordingly, a 90-day suspension for the instant of
 fense was not excessive or unreasonable.

 The above determination on the claim notwithstanding, the Board
 feels compelled to comment upon one particular argument advanced
 by the Carrier fn its defense against the claim, lest the Board's
 findings here be misconstrued.
 There is no question, as concerns a part of the Carrier argument,
 that it ire correct or right when it says that the act of calling
 in dose not legitimatize an absence. such action only estab
 lishes that the employee gave notice that he would not be report
 ing for work at a particular time or date. It does not relieve
 an employee from being required or directed to justify any such
 absence.
 This Board does not agree, however, with the further Carrier con
 e ~ tention that even if it was to be found that proper notification
 and support documentation of a sickness had been provided for
 each of the dates covered by the charge, that "whether the ab
 sences were legitimate is irrelevant" since the claimant had been
 guilty of excessive absenteeism in the past, and any'failure to
 report for work constituted a furtherance of such excessive ab
 senteeism and therefore a proper basis for the administration of
 discipline.
 n
          Certainly, there may be some instances where prolonged absences,

          such as those related to a long-term sickness, when viewed in the

          light of a past record of excessive absenteeism, has the effect

          of making such an individual a part-time employee, and the car

          rier may take appropriate action to remove such an employee from

          service. We say this, because no carrier is obligated to keep in

          its employment an employee who cannot effectively be available

          for work more than on a part-time basis.

          Tit_s Board does not believe, however, that because an employee

          who had in the past been found guilty of excessive absenteeism

          has reason to subsequently report off from work as a result of a

          legitimate short-term illness, that such absence in and of itself

          necessarily gives rise to that employee again being guilty of ex

          cessive absenteeism. In this respect, we think it must be recog

          nized that almost all employees era going to have occasion to be

          excused from a work obligation to attend to an occasional family

          problem or to be off work account occasional sickness or injury.

          Furthermore, if an employee has served disciplinary sentences for

          past periods of unauthorized absences from work, it would be tan

          tamount to placing that employee in double jeopardy to both cite

          and discipline him again for the same past periods of absence.

          This does not mean that after proving an instant charge of un

          authorized absence from work, that an employee's past discipline

r`' record may not be properly considered in determining the extent
          of an appropriate penalty. As this Board has indicated above,


                                  3

hiw-~'p 581 9

 AWARD NO. 11 CASE NO. 31

 that past record may well be taken into account once it has been determined that the employee is guilty o! the current, or more recant charge o! record.

 AWARDI
Clare denied.

 Robert 94--E. Petersont chairman
    arid Neutral Member


stet M. Connor
 Carrier Member

 Hew York, NY
 Jurie, 3 , 1990

 Francis Jr.
 nation M sr