AWARDS 93 - IN JAIL MISSED HEARING

Second Division Award No. 12162 (Cannavo)

"The facts of the case disclose that the Claimant requested permission to be absent from work on May 10, 1989, to attend a Court Hearing; that the Claimant failed to return to work as anticipated because he was jailed for failure to pay his court ordered child support payments; that several weeks passed and the Claimant had not contacted the Carrier concerning his absence without permission.

"The Organization argues that the Claimant was unjustly denied a postponement of the Hearing. As such, the Organization argues that the Claimant was denied a fair and impartial Hearing.

"The Board notes that a review of the record before the Hearing Officer establishes that both the Organization and the Claimant had notice of the Hearing. The record also discloses that the Organization was ready to proceed with the Investigation. The Hearing Officer then heard from two witnesses. The first witness was the General Foreman who testified as to the facts that gave rise to the Claimant's request for a one day leave of absence and his subsequent failure to report to work. The second witness was the wife of the Claimant who testified that she was in touch with a Carrier official and notified the official that the Claimant would be incarcerated until July 8, 1989, well past the date of the Hearing. The Claimant's wife then stated that she did not remember any more about the conversation. The record before the Hearing Officer was simple and complete. There was no indication at the Hearing that a request for postponement was made by the Claimant.

"Finding no procedural defects, this Claim is denied."

Third Division Award No. 31627 (Malin)

"Carrier contends that Claimant's incarceration was not a valid reason for postponing the Investigation. Carrier further argues that incarceration is not a valid reason for a leave of absence and does not justify an employee's failure to protect his assignment. Carrier contends that dismissal was appropriate under the circumstances.

"The Board has examined the record carefully. Prior awards are clear and consistent that a Carrier is not required to grant a postponement and does not act improperly when it holds a hearing even though the charged employee is unable to attend because he is incarcerated. See, e.g., Third Division Award 27081; Second Division Awards 11201, and 11185; Public Law Board No. 5290, Award 1.

"There is no dispute that Claimant failed to protect his assignment on February 11 and 12, 1992, and that the reason for his failure to do so was his incarceration. The evidence further showed that, due to incarceration, Claimant would probably not be at work for some time. Prior awards have consistently held that incarceration does not excuse an employee's failure to protect his job assignment. See, e.g., Third Division Award 25894; Public Law Board No. 2206, Award 3. It is also clearly established that a Carrier does not act improperly when it refuses to grant an employee a leave of absence for his period of incarceration. See, e.g., Second Division Award 11185.

"Accordingly, we conclude that Carrier's decision to dismiss the Claimant is supported by substantial evidence and is not otherwise arbitrary, capricious or improper. The claim must be denied."