Award No. 5927 Docket No. 5799 2-C&O-EW-'70
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
SYSTEM FEDERATION No. 41,
RAILWAY EMPLOYES' DEPARTMENT, A.F.L: C.I.O.
(ELECTRICAL WORKERS)
EMPLOYEES' STATEMENT OF FACTS: Electrician Randolph Vance, hereinafter referred to as the claimant, was employed by the Chesapeake and Ohio Railway Company, hereinafter referred to as the carrier, at Russell roundhouse shops at Russell, Kentucky.
The claimant had been reported off sick since January 28, 1968, and under doctor's care. The carrier cited claimant for an investigation, charging him with violation of rule 21 of the shop crafts agreement in that he did not receive permission to engage in business of selling various and sundry merchandise at the Ashland Swap Meet while absent account personal illness from his regular assignment at Russell Roundhouse, Russell, Kentucky.
The investigation was held as scheduled. As a result, claimant was dismissed from service effective July 30, 1968.
The dispute has been handled up to and including the highest officer of the carrier designated to handle such matters and all have declined making a satisfactory settlement.
POSITION OF EMPLOYEES: Under the provisions of rule 35 captioned "GRIEVANCES" in pertinent part reading:
The carrier was actually under no actual obligation to hold an investigation as was done in this case. However, it is the policy of the carrier in such instances to give the employe involved every opportunity to show cause why his name should not be removed from the roster. It is the carrier's wish in seniority matters to establish the facts by the hearing method before action is taken and this was what was done in the Vance case.
It was clearly shown that Vance was engaged in self-employment in specific violation of the provisions of rule 21. Vance's self-serving statements are not to be believed, but even if they were subject to belief, this would not change the fact that he was engaging in other employment while alleging sickness and by so doing, he lost his employment relationship with the railway company. This issue has been previously ruled on by this board in a case covered by same System Federation in its award no. 4912, docket no. 4849, Referee Johnson, which award held that rule 21(b) was mandatory and selfexecuting and also cited Second Division awards 111, 509, and 2394, issued without referees, and awards 1581, 3268 and 4088. The award further held that the rule could not be unilaterally waived by carrier since the prior permission must be obtained from the organization as well as the carrier. The evidence brought forth at the investigation clearly shows that no such prior permission was received by Vance, either from the carrier or from the organization, and certainly it cannot be argued that he was free to engage in selfemployment.
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.
Claimant had been reported off sick since January 28, 1968. The record shows that he had been continuously under doctor's care.
On Saturday, June 15, 1968 a Carrier official and a Carrier detective went to a place called the Ashland Swap Meet and observed Claimant sitting at a display table (which was rented by Claimant's teen-age son). The Carrier detective then purchased 4 coins (dated pennies) for the sum of 50 cents.
From the record it appears that the Ashland Swap Meet is a building where members of the community meet to trade and sell various items of merchandise. Display tables are available for rental. The Ashland Swap Meet is open only on week-ends.
Claimant was charged with violation of Rule 21(b) of the Agreement which provides:
At the hearing Claimant contended that he was not employed at the Ashland Swap Meet, that his teen-age children displayed various items that they wanted to swap or sell, and that he went there "to watch the table for them, and to watch over them while they were there."