The Second Division consisted of the regular members and in
addition Referee Joseph E. Cole when award was rendered.
SYSTEM FEDERATION NO. 18, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: The Boston and Maine Corporation, hereinafter referred to as the Carrier, violated the provisions of the controlling agreement, starting on January 18, 1971, through February 10, 1971, when the Carrier unjustly suspended and held out of service, Carman D. C. Call, hereinafter referred to as the Claimant, at East Deerfield, Massachusetts.
The Claimant was regularly employed by the Carrier at its East Deerfield Car Department and also was a regular member of the wreck crew.
Under the date of January 21, the following notice was sent to the Claimant, by the Carrier's Supt: Cars, T. W. Airey, East Deerfield Car Department, Boston and Maine Corporation:
A. M. on January 18, 1971. There also can be no question in the mind of your Board that his convenient sickness developed after he had been instructed to perform a service which he two days earlier had brazenly boasted he would not perform.
As to the charge of sleeping after the 4:00 A. M. reporting time, there is no possible defense which can be or has been advanced by or on behalf of Mr. Call. He admits he came on the Carrier's property about Midnight so he would not run the risk of car trouble in the morning. He admits he made a bed and went to sleep. He does not deny the Wreck Master's statement that he was asleep at 5:00 A. M. when the Wreck Master woke him. What more can possibly be said to prove that charge? The answer is obvious. Nothing.
It is a well-established maxim that a Carrier has a right and an obligation to assess discipline. In the instant case that obligation was properly exercised by the Carrier. A specific charge was made. A factual record of testimony was developed. An evaluation of the testimony was made. A determination to discipline, which. was neither capricious nor excessive, was made only after it was determined that sufficient competent testimony had been adduced to establish Mr. Call's guilt of the charges. There can be no change made in those facts.
Without in any way retreating from any part of the Position outlined above, it is indeed interesting to note the claim which has been made and advanced on behalf of Mr. Call. Your Board is asked to pay him for a period of time beginning January 18, 1971, and continuing until February 10, 1971, "while held out of service by the Carrier." If this contention were not so absurd, it would be humorous.
Mr. Call contends he suddenly became so ill at 5:00 A. M. on Monday, January 18, 1971, that he could not possibly comply with the order given to him by the Wreck Master. He would have your Board believe he was not insubordinate-he was violently ill. And he himself said at page 8 of the hearing record, "In an hour you can get awful sick."
Assuming without conceding but in fact denying that he was "awful sick," no one-not Mr. Call nor any of the plethora of representatives who have championed his cause-have offered one scintilla of testimony or proof as to when he sustained a miraculous cure from the awful sickness which befell him so suddenly at 5:00 A. M. on January 18, 1971. Your Board is asked, however, to require the Carrier to compensate Mr. Call during this unknown period of illness. Just how such a determination can be made by your Board is beyond the realm of Carrier's comprehension.
In view of the foregoing, Carrier submits that there is nothing in the record of this case to support the Employes appeal and/or claim, and they should be denied.
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.