The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SYSTEM FEDERATION NO. 30, RAILWAY EMPLOYES'
DEPARTMENT, (A. F. of L.-C. I. O. (Boilermakers)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement, Boilermaker Helper R. L. Sterling was unjustly suspended from service on April 11, 1963, and unjustly dismissed from service on May 3, 1963.
2. That accordingly, the Carrier be ordered to restore Boilermaker Helper,. R. L. Sterling to Service with Seniority Rights unimpaired, compensate him for all time lost retroactive to April 11, 1963, make Claimant whole for all Vacation Rights, pay the Premium for Hospital, Surgical & Medical Benefits for all time held out of Service, pay the Premium for Group Life Insurance for all time held out of Service.
EMPLOYES' STATEMENT OF FACTS: Boilermaker Helper R. L. Sterling, hereinafter referred to as the claimant, was employed by The Baltimore & Ohio Railroad Co., hereinafter referred to as the carrier at Martinsburg, W. Va., maintenance of way shop as a boilermaker helper with seniority date of October 1, 1943.
Claimant was suspended from the service on April 11, 1963 and given the following letter:
without merit. The carrier respectfully requests that this division so hold and that the claim in its entirety be declined.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On April 11, 1963, Claimant was suspended and was sent written notice of a hearing on April 19th on the charge of "Chronic Absenteeism" without stating any number of days' absence.
On May 3rd after the hearing, he was notified of his dismissal from service because of 70 days absence without notice between February 1962 and April 11, 1963.
Of these 70 days' absence, 50 occurred during ten months in 1962, various months' absence being from 2 to 8 days with an average of 5 days per month. The Carrier's record was read to him and he was asked:
This is the only evidence in the record concerning his absences, except the following:
This shows that he was absent on April 11th without reporting off; but there is no evidence that this was true of the other absences claimed in 1963. There was this further evidence:
Thus the warning was admitted; and it apparently came quite late during the fifteen month period with only one subsequent unreported day's absence proven.
The record thus shows 51 days of absence without reporting off, amounting to from 1 to 8 days in each of 11 different months, but whether for continuous periods in any month is not shown. As the highest combined totals for two consecutive months was 13 days, no one absence can have totalled 15 days.
Therefore Claimant clearly did not violate the provision of Rule 19 reading:
While the sentence does not expressly say "for fifteen consecutive days", yr "for a period of fifteen days", it can have no other meaning. Certainly it does not warn Claimant of automatic dismissal if he, without notice, absents himself for three days on five widely scattered occasions, or for five days on each of three such occasions, or if he thus absents himself for one day at fifteen different times during his 19% years' service. Apparently the provision was not so interpreted, for Claimant was absent without notice during 18 different days in February, March, April and May of 1962, nearly a year earlier. Furthermore, he was not charged with absenting himself for fifteen days without notice, but with chronic absenteeism.
However, brief as it is, the record shows Claimant guilty of the charge, since he admitted the fifty absences without notice in 1963, and gave notice only when he was ready to return.
His answer was "No, not necessarily," and the hearing record does not show that his absences were due to intoxication. We therefore assume that they resulted from illness or some other valid cause, which still does not excuse failure to give notice as early as possible.
Under the circumstances Claimant's discharge appears excessive, although his suspension was clearly justified and further discipline was warranted. Claimant should be returned to service with seniority rights unimpaired, but without compensation for time lost.
Claim sustained to the extent that Claimant be returned to service with seniority rights unimpaired, but without compensation for time lost.
(The Second Division consisted of the regular members and in addi
tion Referee Howard A. Johnson when the interpretation was rendered.)
INTERPRETATION NO. 1 TO AWARD NO. 4656
DOCKET NO. 4655
The phase of vacation rights herein involved is set forth in the Employes' Statement of Facts as follows:
In other words, the question is whether under this Award the 1966 vacation which the Claimant earned by his. 1965 compensated service should be limited to one week as if he were a new employe, or should extend to whatever period the Agreements provide according to the entire service covered by his seniority period.
The Carrier's position is that the Board did not expressly sustain the claim for vacation rights and that it intended to return Claimant to service on a leniency basis; that he was therefore in effect a nw employe.
But the Board expressly held that Claimant's discharge was not warranted, and in effect it reduced his discharge to suspension with seniority rights unimpaired.
In Referee Morse's Interpretation of November 12, 1942, to the Vacation Agreement of December 17, 1941, he said (p. 84)
In other words, the continuity of the employer-employe relation is not destroyed. The same result necessarily follows from this Board's reduction of the discipline to a suspension and its direction that his seniority rights be unimpaired. The continuity not having been broken Claimant was entitled to whatever future vacations his past and future service might entitle him, and to that extent his vacation rights were necessarily restored.
We consequently interpret Award 4656 as entitling Claimant to a 1966 vacation as outlined in the last paragraph of Employes' Statement of Facts hereinbefore quoted. 1-4656-3 1033