The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, A: F. OF L. - C. I. 0. (Electrical: Workers)
EMPLOYES' STATEMENT OF FACTS: That A. J. Ritter, hereinafter referred to as the claimant, entered the service of the Illinois Central Railroad Company, hereinafter referred to as the carrier, as an Electrician on July 22, 1946. At the time' of the incident giving rise to the instant claim, claimant was regularly employed by the carrier as an electrician at its Weldon Coach Yard, Chicago, Illinois, ,with assigned hours and work week of 4:00 P. M. to 12:00 Midnight, Friday, Saturday and Sunday; 12:00 Midnight to 8:00 A. M., Monday and Tuesday; Wednesday and Thursday as rest days.
During claimant's twenty-three (23) years of service with the carrier, he was employed in the position of electrical foreman for approximately nine (9) of those years.
Around 3:00 P. M., Saturday, October 5, 1968, prior to claimant's regular starting time, which was 4:00 P. M. on that day, claimant called the general foreman's office at carrier's Weldon Coach Yard. Second Shift Gang
Also, See Second Division Awards 2087, 2769, 3874, 4000, 4001, 4098, 4132, 4195, 4199, 4693, and Third Division Awards 419, 431, -1022, 2297, 2632, 3112, 3125, 3149, 3235, 3984, 3985, 3986, 5011, 5032, 5881, and 5974.
The company was not arbitrary or capricious in the assessment of the discipline in this case, as the evidence will substantiate that a 30-day suspension was warranted.
In the light of the direct testimony of Mr. Kuknyo that the claimant did not request or receive permission to be off on the day in quest'on, and the statements by the claimant himself that he still wanted to speak with his foreman (thereby indicating that he actually did not feel that he had properly secured permission to be absent from work), there is substantial evidence to support the conclusion that Mr. Ritter should have been suspended for thirty days.
Furthermore, the company has shown that the Board should not disturb the discipline assessed because the company was neither arbitrary nor capricious in assessing the discipline.
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.
At the time of the involved incident, Claimant was regularly employed as an Electrician in its Weldon Coach Yard, Chicago, Illinois. Claimant had had 23 years of service and during his employment was employed in the position of Electrical Foreman for approximately 9 of those years. On Saturday, October 5, 1968, Claimant was scheduled to begin work at 4:00 P. M. About 3:15 P. M., 45- minutes before he was scheduled to work, Cla'mant telephoned the office of the General Foreman and informed a Foreman that he (Claimant) was going to be off because his son was 'ri town and he wanted to spend a couple of days with him. The Foreman stated that he would deliver the message. When Claimant failed to show for his regular
shift, the Shop Superintendent was notified and an investigation was held. The investgation determined that Claimant had failed to ask permission and did not receive permission to be off. The investigation further determined that Claimant had previously been warned for failure to comply with the rule governing time taken off from duty. Claimant was suspended for 30 clays. The Organization contends that he was prejudged prior to his investigation; that the investigating officer refused to furnish a copy of the report of the prior investigation where no punishment was assessed; and that the punishment was disproportionate to the offense charged to such an extent that it indicated prejudice. The Organization further contends that this Claimant was not guilty and the charges brought against him should have been withdrawn. Carrier contends that the rules require the employe to obtain permission to be off; that the discipline assessed was justfied and that this Board should not substitute its judgment for that of the Management for the reason that the discipline assessed was neither arbitrary nor capricious. The Organization further contends that permission to lay off was granted to this Claimant.
A careful review of the record indicates that Claimant substantially complied with Rule 23 which requires an employe to obtain permission from his Foreman, if possible, before absenting himself from work. There is no dispute in this case to the effect that Claimant called the General Foreman's office and informed a Foreman that his son was in town; that he wanted to spend a couple of days with him; and that he would be off work because of that reason. The Foreman stated: "O.K., I'll deliver the message." The Foreman gave no indication whatsoever that Claimant would not be allowed to take the time off; that Claimant should talk with anyone else about taking off from work; or that permission to take off was being denied. In fact, the conversation indicated in every respect that permission was granted. By failing to use words of constraint, the Foreman acquiesced and this acquiescence must be implied by his conduct in dropping the matter at that point.
Under the circumstances, this Board determines that the Carrier acted in an arbitrary and capricious manner and that the punishment assessed was excessive.
By this opinion, this Board does not condone employ es taking off work without first obtaining permission, as required under the rules contained in the Agreement. However, in this instance, the Board feels that permission was granted Claimant to take off work.
This Board will sustain Part 1 and 2 of the claim, but will deny Part 3, pertaining to interest.