YARDMASTER DEPARTMENT AWARDS

AWARDS 77 - ABSENTEEISM

AWARD # REFEREE RAILROAD
Second Division Award 11938 Meyers Baltimore & Ohio-Chicago Term
Second Division Award 11939 Meyers Union Pacific
Second Division Award 12090 Zusman Chicago & North Western
Second Division Award 12134 Zusman National RR Passenger Corp
Second Division Award 12142 Zusman NE Ill Regional Commuter RR
Second Division Award 12156 Duffy Southern Railway
Second Division Award 12159 Cannavo CSX Transportation, Inc.
Second Division Award 12160 Cannavo Chicago & North Western
Second Division Award 12166 Cannavo Missouri Pacific
Second Division Award 12798 Wesman Chicago & North Western
Third Division Award 28993 Dennis National RR Passenger Corp
Third Division Award 31342 Seidenberg Consolidated Rail Corp
Public Law Board No. 5902, Awd. 13 Peterson Southern Railway
Public Law Board No. 6584, Awd. 2 Suntrup Soo Line

Second Division Award No. 11938 (Meyers)

"On June 24, 1987, the Carrier notified the Claimant to attend an Investigation in connection with the following charge:

"`. . . excessive absenteeism from your assignment in that you were absent, tardy, or left early on the following dates:

Absent Sick Tardy or Left Early

5/9/87 4/29/87 3/15/87 . . .

6/10/87 6/20/87 5/22/87 . . .

6/4/87 . . .

6/12/87 . . .

6/14/87 . . .

6/19/87 . . .'

"After one postponement, the Hearing took place on July 15, 1987. On August 18, 1987, the Carrier notified the Claimant that he had been found guilty of the charge brought against him and was assessed discipline of 5 days' actual suspension, beginning August 19, 1987, and running through August 23, 1987. The Organization thereafter filed a Claim challenging his suspension.

"This Board has reviewed the evidence and testimony, and we find that there is sufficient evidence that the Claimant was guilty of excessive absenteeism when he was absent, tardy, or left early on ten different occasions between March 15, 1987, and June 20, 1987. Although the Claimant contends that he had legitimate reasons for his absenteeism or tardiness, the fact remains that that record is sufficient to constitute a violation of the Rules prohibiting excessive absenteeism.

"Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the degree of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we find its action to have been unreasonable, arbitrary or capricious.

"In the case at hand, the Claimant received a five-day suspension. Given the nature of the violation and the previous record of the Claimant, this Board cannot find that the action taken by the Carrier was unreasonable, arbitrary, or capricious.

"Claim denied."

Second Division Award No. 11939 (Meyers)

"On February 4, 1988, the Carrier notified the Claimant to appear for a formal Investigation in connection with the following charges:

"`. . . that you failed to protect your assignment on the following dates when you were absent or reported for work late without authority . . . November 29, 1987; November 30, 1987; December 6, 1987; December 7, 1987; December 12, 1987; December 13, 1987; December 14, 1987; December 20, 1987; December 21, 1987; December 27, 1987; December 28, 1987; January 2, 1988; January 6, 1988; January 13, 1988; January 16, 1988; January 19, 1988; January 20, 1988; January 23, 1988; January 26, 1988; January 27, 1988; January 30, 1988; February 1, 1988 . . . This is in violation of Rules B and 604 of Form 7908.'

"The Hearing took place on February 18, 1988. On February 25, 1988, the Carrier notified the Claimant that he had been found guilty of the charges and was assessed discipline of dismissal effective immediately. Thereafter, the Organization filed a Claim on Claimant's behalf challenging his dismissal. On October 19, 1988, the Carrier submitted this discipline case to this Board for final disposition.

"This Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant was guilty of failing to protect his assignment when he was absent or reported for work late twenty-two times between November 29, 1987, and February 2, 1988. There is no question that a record of that kind constitutes a violation of the Carrier's Rules regarding protection of one's assignment.

"Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we find its action to have been unreasonable, arbitrary, or capricious.

"The record reveals that the Claimant in this case has been progressively discipline and he continued to fail to protect his assignment. Therefore, this Board cannot find that the Carrier acted unreasonably, arbitrarily, or capriciously when it terminated the Claimant's employment. The Claim will be denied.

"Claim denied."

Second Division Award No. 12090 (Zusman)

"Our review of the record on property and the Rules cited by the Organization finds the evidence sufficient to support Carrier's discipline. The Hearing was held as per Rule 35(c) within 30 days of the occurrence to be investigated. The occurrence which triggered the policy was July 7, 1988. In the event the evidence properly substantiates that date as one of continued absence within the framework of the Absenteeism Policy on property, it complies with Rule 35(c). Claimant was charged with 'excessive' absenteeism, which is the accumulation of absences beyond reasonable acceptability. The record substantiates that Claimant was absent on July 7, 1988. As such, we find the Carrier's consideration of past absences legitimate to support the proper evaluation of whether said additional absences beyond the triggering date were excessive.

"The Absenteeism Policy was complied with in these instant circumstances. A discussion with the Claimant as to his continued absences occurred on March 19, 1988, with his immediate contract Supervisor. On April 6, 1988, Claimant was counseled by his immediate office Supervisor. Following a performance review held May 17, 1988, the Claimant received a Letter of Review. Claimant was placed on the Carrier's Discipline System by letter dated June 21, 1988. The record indicates Claimant knew his attendance was unsatisfactory. The seven absences due to illness were for different problems and only one required a doctor's care. While the Claimant did call in each time when he was ill as per Rule 20, Claimants absenteeism nevertheless constitutes `excessive absenteeism.'

"On the whole of this record, the Board finds the Claimant was afforded a fair and impartial Investigation where the charges were substantiated. Rule 35(c) was not violated. Rule 20 does not justify continued problems with absenteeism and tardiness after Carrier has counseled and attempted throughout progressive action to alter the behavior (Second Division Awards 10037, 9705; Public Law Board 3166, Award No. 45). The Hearing Officers leeway in reading in additional Rules and eliciting response was not sufficient to deny due process and the full protection of the Claimant's Agreement rights. Sufficient probative evidence supports the finding of guilt. This decision is consistent with numerous Awards (Second Division Awards 11887, 11872, 11918; Public Law Board 3166, Award Nos. 68, 69 and 70). The Claim is denied."

Second Division Award No. 12142 (Zusman)

"We view the record as fully substantiating the Carrier's charges. The testimony establishes that the Claimant failed on December 13, 1988 to either report for duty or to call and inform his Supervisor that he would be unable to protect his assignment. Claimant's explanation for his inability to call is wholly inadequate. We do not accept the fact that the Claimant lacked the money to make the phone call and there is no record supporting injuries severe enough to have made notification impossible.

"The record indicates that the Claimant did call the Supervisor two hours after his shift began on December 14, 1988. Claimant indicated that he had personal problems. He did not state that it was an emergency. Claimant's defense throughout the Investigation was that he had been severely beaten up and evidence supports that fact. Nevertheless, the extent of his injuries did not prevent the Claimant from walking two miles to a friend's house nor did he require medical help. In fact, the Claimant was told to report to work on December 14th due to a shortage of personnel and he failed to do so. Claimant's defense does not objectively support the fact that he made contact as soon as he was able. His contact to protect his assignment occurred long after he was beaten up. We do not find the nature of his request on December 14th to be in compliance with the language of the February 22, 1988 Memorandum of Agreement. The testimony confirms that the Claimant failed to fulfill his responsibilities and did violate Rule Q.

"The Board finds the Carrier's discipline was fully supported by the record. The Claimant had been previously guilty of the same Rule infraction. Prior to dismissal, Claimant's disciplinary record indicates that he had signed waivers of a five day, thirty day and sixty day deferred suspensions for violations of rule Q in this same year. In this instant case, we find dismissal as fully warranted given the proven charges and the Claimant's record with the Carrier. The Claim is denied."

Second Division Award No. 12134 (Zusman)

"On merits, a General Foreman testified that on September 4, 1988, the Claimant called off due to oversleeping and that on October 2, 1988, the Claimant called off due to muscle strain and the use of muscle relaxers. In both cases, time cards were marked as unexcused absences. Importantly, the Claimant was informed that medical documentation was necessary and to be provided for his October 2, 1988 absence. Another General Foreman testified that when the Claimant called in sick on September 17 and 23 he was informed to provide medical documentation. No medical documentation was ever provided in the instant case. His absence on September 29 for oversleeping was also marked as an unexcused absence.

"A review of the Claimant's testimony confirms that he was ordered to provide medical documentation and did not. Claimant's explanation for his absences do not excuse them within the language of Rule O. The medical form issued August 8, 1988 includes no return-to-work restrictions. There is no evidence in the record to document that the medical substantiation requested by both General Foremen was ever provided. The evidence of record is sufficient to prove that the Claimant is guilty as charged.

"In view of this finding the only issue remaining is the appropriateness of dismissal. The Board finds the discipline herein as appropriate given Claimant's prior attendance and disciplinary record. Claimant was absent without permission on 33 days in 1986, 29 days in 1987, and 22 days in 1988. Claimant has been assessed discipline seven times, twice dismissed and reinstated, and previously assessed a deferred suspension for excessive absences under Rule O. The Carrier's action will not be disturbed (Second Division Awards 8796, 8791, 7852; Third Division Awards 25853, 22524).

"Claim denied."

Second Division Award No. 12166 (Cannavo)

"The Board also finds that the Carrier met its burden of proof in establishing that the Claimant was in violation of Rule 17. The Claimant's records, on its face, establishes that the Claimant did not first obtain permission from his foreman to lay off and that he did not advise his foreman promptly of pending absences. This Board has ruled on numerous occasions upholding a Carrier's right to discipline employees who have absented themselves from duty without proper authority. Further, in assessing whether the discipline was commensurate with the offense, the Board has also held that the Carrier has an absolute right to consider the Claimant's entire record. This Claimant's record is replete with counseling, letters of reprimand and letters to his file. Consequently, the Board agrees with the finding of the hearing officer as to the discipline assessed."

Second Division Award No. 12160 (Cannavo)

"As a result of an Investigation held on May 23, 1989 the Claimant was dismissed from service due to his failure to protect his assignment on April 28, 29 and 30, 1989. The Claimant was employed as a Laborer at the Proviso Diesel Ramp.

"The Board has reviewed the entire record and finds that the Claimant was totally and completely remise in protecting his assignment. No evidence exists that the Claimant requested a leave of absence. More importantly, no evidence exists that establishes that the Claimant ever attempted to return to his assignment. From the initiation of the Investigation to its conclusion, the Claimant has remained unavailable. It is clear to this Board that the Claimant provided the Organization with nothing upon which the Organization could refute the substantial evidence produced by the Carrier. Further, the Claimant's record indicates a propensity on his part to absent himself from his assignment. The record also establishes that the Claimant was well aware of the rules regarding attendance and tardiness as indicated by the numerous discussions and prior discipline administered to him. The Board rejects the Organization's argument that the notice for the Investigation was improper in that it was sent to the Claimant's Chicago address while the Carrier knew that the Claimant was in California. The record does not establish that the Claimant's address of record has ever been changed.

"The Board finds that the Carrier satisfied its burden of proof by presenting substantial evidence to support the charges and that the Claimant did not provide the Organization with any evidence upon which this Board could modify or reverse the Carrier's assessment of dismissal."

Second Division Award No. 12159 (Cannavo)

"This Board has explained on numerous occasions the importance of regular attendance and a Carrier's right to assess discipline when employees do not meet this obligation. Every employer is entitled to expect that the job it provides an employee will be filled on a daily basis. Even where a Claimant provides the Carrier with notice of pending absences, the result does not change -- that being that the work expected to be performed is not performed or is performed at premium cost to the Carrier. This Claimant has been afforded the benefits of Agreement due process and progressive discipline. The Claimant's record indicates that he has previously been issued two warning letters and assessed a twenty day actual suspension for excessive absenteeism. It is obvious to the Board that the previous discipline issued to the Claimant did not have its intended corrective effect. Therefore, we must deny the Claim."

Third Division Award No. 28993 (Dennis)

"The Organization in this instance raised numerous defenses on the part of Claimant. Its chief defense was that a legitimately ill employee cannot be disciplined for absenteeism. This issue has been reviewed on many occasions by Referees in this industry, as well as by many others throughout the nation. The reasoned opinions in those situations support the proposition that an Employer has the right to expect that its employees will report to work on a regular basis. An Employer has a right to discipline an employee for excessive absenteeism, regardless of the cause.

"Carrier in this instance has an attendance policy that addresses frequent absences and what penalties may be imposed. This Board concludes that the Carrier acted properly and within the terms of its attendance policy by assessing a reprimand to Claimant."

Second Division Award No. 12156 (Duffy)

"The record demonstrates that Claimant's absences during the month exceeded the Carrier's established policy on excessive absenteeism. Having found Claimant guilty of the underlying charge, the Carrier could then properly consider Claimant's past record, which included one counseling and two written reprimands for absenteeism, in assessing the penalty. The penalty in this case appears to be consistent with the principles of progressive discipline, and the Board finds no basis for disturbing the Carrier's disposition in this matter."

Third Division Award No. 31342 (Seidenberg)

"The Board finds this a troublesome case. It concludes that while the hearing was not a paragon of perfection, the errors did not constitute such material faults that they require the Board to vacate the discipline. In truth, there are very few contested facts in this case. The nub of the dispute centers upon the emphasis and significance that should be ascribed to the Claimant's absences, not only in 1992 but also over his entire work record.

"The Board finds some merit in the Organization's contention that bona fide illness is not a valid basis for assessing discipline for absenteeism. However, it is necessary to guard against too simplistic a reply to this issue. Before determining whether the absences in question are excessive, it is necessary to review the position the involved employee occupies. The Carrier is properly entitled to hold that a dispatcher should be kept to a higher standard that a clerk typist. Obviously, all employees owe a high degree of fidelity to the demands of their positions. Nevertheless, the importance of a Dispatcher to the efficient running of a railroad and his continued absences may properly be viewed in a somewhat more demanding and critical manner than an employee occupying a less responsible position.

"The Carrier is also properly entitled to view judiciously the entire attendance record of the affected employee. Even though the absence of the employee may be due to a bona fide illness, beyond the control of a employee, there is philosophical underpinning for the assessment of discipline. The Employee-Employer relationship creates a framework that demands the Employer compensate the employee with a fair rate for a fair day's work and the Employee obligates himself to render a fair day's work for his compensation.

"When either one of the parties to this relationship fails to meet his obligations thereunder, the relationship may be considered severed or terminated. This is the rationale that allows an employer to review the totality of the employee's attendance record and take corrective action even if part of the attendance record consists of absences caused by bona fide illnesses. That is not to say the carrier does not have to exercise his review of the employee's attendance record judiciously and compassionately. Before the Carrier can discipline an employee for excess absenteeism when part of the absences were caused by genuine illness, the Carrier must demonstrate it has not acted arbitrarily or precipitously.

"In the case at hand, the Board finds no merit that the deferred 30 day suspension is proof that the Carrier has given consideration to all the factors that caused the Claimant to be absent an inordinate amount of time from his important position. Even if the 1992 absences were necessitated by bona fide illness, the Claimant is guilty of fracturing or undermining the Employee-Employer relationship. The Board finds that the Claimant must take some affirmative measures to indicate that he is actively undertaking therapeutic measures to copy with his gastrointestinal problem. The Claimant cannot realistically expect to be absent several days each month and still retain his job. The Carrier is also expected to make its counseling and medical facilities available to assist the Claimant regain his health. The Claimant as a senior employee with 22 years seniority has the right to expect assistance from the Carrier to enable him to be able to render regular service.

"In summary, the Board finds no merit to the Organization's procedural objections. It also finds that in light of the Claimant's total record, and in light of the exigencies of the Employer-Employee relationship, the Carrier did not act harshly or arbitrarily in assessing the Claimant a deferred suspension for his 1992 absences when it is juxtaposed against his overall attendance record."

Second Division Award No. 12798 (Wesman)

"Claimant's discipline record indicates a pattern of absenteeism. He received two letters of review regarding his absenteeism prior to being placed on the Discipline System. The year after he was placed on the Discipline System, he received a five-day actual suspension and a ten-day actual suspension for failure to protect his assignment. Two years later he received another letter of review regarding his excessive absenteeism. Claimant's pattern of absence -- primarily for personal illness -- continued unabated until his dismissal in March of 1992.

"It is not unreasonable for Carrier to expect an employee to attend work on a regular basis. While Claimant has offered various reasons for his poor attendance record, the facts remains that he appears to be unwilling or unable to protect his assignment in a reliable manner. Under the circumstances, Carrier's assessment of the ultimate penalty of dismissal was neither unreasonable nor excessive."

Public Law Board No. 5902, Awd. 13, Case 13 (Peterson) (UTU/Norfolk Southern Rwy)

"As set forth in prior awards of boards such as this, a carrier has a right to hold an employee accountable for excessive absences even where some of the absences are due to illness, for no carrier can compete or operate efficiently and effectively if its employees cannot be depended upon to report for work with a high degree of regularity. Unfortunately, we have before us an employee who, despite warnings, counseling and discipline, has apparently elected to ignore such admonishments and instead continue to offer myriad and unsubstantiated reasons for a proclivity to unilaterally absent himself from work."

Public Law Board No. 6584, Awd. 2, Case 2 (Suntrup) (UTU/Soo Line)

"In view of the full record on this Claimant, as it exists at this point, the Board is unable to conclude, under title of extenuating circumstances, that the Carrier's actions in levying discharge against him on the date of February 22, 2002 was improper. As moving party to this case the Carrier has sufficiently met its burden of proof, both with respect to the merits of the case, and with respect to the quantum of discipline."


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Last modified: April 29, 2005