Case No. 43
Award No. 43

United Transportation Union      )
                                 )
                              vs ) PARTIES TO DISPUTE
                                 )
  Union Pacific Railroad Company )

STATEMENT OF CLAIM

Request of C.J. Perdue ("Claimant"), Los Angeles Service Unit, for removal of a "First Offense" Absenteeism assessment from his record.

FINDINGS

This Board finds the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction over the dispute involved herein. The parties to said dispute were given due and proper notice of hearing thereon.

On May 26, 2004 the Carrier assessed a "First Offense" violation of its attendance policy. As a result of an investigation held on May 7, 2004 the Carrier found the Claimant violated Operating Rules 1.13 and 1.15 by being excessively absent during the period January 21,2004 and April 20,2004.

The investigation was held without the Claimant being present. Claimant was called to work on the day of the investigation. When he tried to explain that he had to attend an investigation, Crew Management said they had no record of such. The Claimant designated his Local Chairman to represent him at the investigation. While this is a clear violation of the Claimant's right to a fair and impartial hearing, the Organization has failed to object to the violation at both the hearing and in its arguments in this case.

As to the merits of the case, the Carrier's witness failed to produce sufficient evidence to prove the Claimant's guilt. Nowhere in the record does the witness produce the Claimant's percentage of absenteeism as compared with fellow employees.

Claimant was working in unassigned service without regular off days. While the witness testified the Claimant went 41 days without working, there was no evidence as to how many days the Claimant could have worked in the period.

The Carrier has failed to meet its burden in proving the Claimant violated its Rules and the discipline is to be removed from the Claimant's record.

AWARD

Claim sustained. Carrier is ordered to comply with this Award within 30 days from its date.

R. G. Richter, Chairman
Neutral Member

Frank Tamisiea                                     J. Kevin Klein
Carrier Member                                     Employee Member

Dated: 3/16/05