SPECIAL BOARD OF ADJUSTMENT N0. 986
Case No. 19
Docket No. NEC-BMWE-SD-1320D
PARTIES: Brotherhood of Maintenance of Way Employes
TO
DISPUTE: National Railroad Passenger Corporation (Amtrak)
FINDINGS:
On May 21, 1985, Claimant W.D. Burgess was notified by Carrier
to appear at a hearing in connection with the charge that he was
absent without authorization on three dates in April and May 1985.
After a postponement, the hearing was held on June 25, 1985. As a
result of the hearing, Claimant received a ten-day suspension.
The organization 'challenges the timeliness of the hearing. Rule
71 requires that Carrier schedule a hearing within 30 days of the
Division Engineer's knowledge of a possible violation. In this case,
only one of the cited dates falls within 30 days of the scheduled
hearing. The Organization contends that Carrier's case is therefore
flawed, and the discipline is void.
The organization further asserts that carrier failed to meet its
burden of proof. Claimant testified that on two of the cited dates,
he had doctor's appointments for treatment of an injury. Moreover,
Carrier's general foreman testified that he released Claimant to get
treatment for his injury; the Organization asserts that the general
foreman apparently excused Claimant, yet charged Claimant with an
unauthorized absence for the day following this-release. The
organization asserts that no reason was given for this decision. The
organization points out that under the absenteeism agreement, illness
is a legitimate excuse for absence; all of the cited absences were
related to Claimant's injury. The Organization asserts that Claimant
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has not violated the absenteeism agreement; the claim should be
sustained.
The Carrier asserts that there is no dispute that Claimant was
absent on the cited dates. The testimony of Claimant's general
foreman shows that Claimant did not notify proper supervision of his
absences, and Carrier's time records prove Claimant was absent on the
cited dates. The Carrier further argues that the Organization's
assertions do not mitigate Claimant's proven violations. Carrier
asserts that the record shows Claimant did not give any notice or
excuse to his foreman about his absences.
The Carrier also contends that the parties' past practice under
Rule 71 establishes that the charge was timely; one of the three
cited dates that constitutes this offense falls within the thirty-day
period. Even if the organization's assertion on this point is
correct, Carrier asserts that Claimant was absent without permission
on the cited date within the thirty-day period; this absence was a
violation of the absenteeism agreement.
The Carrier additionally argues that the assessed discipline was
not arbitrary, capricious, or excessive. Carrier therefore contends
that the claim should be denied in its entirety.
This Board has reviewed all of the evidence and testimony in this
case; and we find that since the original hearing was scheduled within
30 days of the last date with which the Claimant was charged with
being absent without proper authorization, 'there has been no violation
of Rule 71 with respect to the May 8, 1985, date. Therefore, the
Carrier had a right to hold an investigation into that incident of
absence without proper authorization.
With respect to the substantive claim, the record is clear that
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the Claimant gave no appropriate excuse or notification to management
for his absence on May 8, 1985. Consequently, it must be considered
unauthorized pursuant to the agreement between the parties. Hence, he
was appropriately found guilty for the May 8, 1985, unauthorized
absence.
Once this Board determines that a carrier had sufficient
evidence to find a claimant guilty of the offense with which he was
charged, we next turn our attention to the type of discipline, imposed.
In this case, the Claimant's record shows that he received a letter of
warning in April 1985 for a violation of the Absenteeism Agreement.
Consequently, pursuant to the agreement between the parties, this
second violation within the year made him eligible for a 10-day
suspension. We cannot find that the action taken by the Carrier in
suspending him for 10 days was unreasonable, arbitrary, or capricious.
Award:
Claim denied.
hairma , Neutral M m r
i
r
_~I
Carrier ember loyee Member
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