Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
6794
SECOND DIVISION Docket No. 6534
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( Brotherhood Railway Carmen of the United
( States and Canada, Railway Employes'
Parties to Dispute: ( Department, A. F. of L. - C. I. 0.
( Port Authority Trans-Hudson Corporation
Dispute: Claim of Employes:
1. That the Carrier violated the Controlling Agreement on
August 14, 1972, when they unjustly suspended Car Inspector
Apprentice, W. Garcia for sixty (60) days and held said
suspension in abeyance until his return from military
leave.
2. Accordingly, he is entitled to be made whole by being
compensated for all wages lost, if any.
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.
Parties to said dispute were given due notice of hearing thereon.
Following an investigative hearing on July 26, 1972 Claimant,
on August 14, 1972, was assessed a 60-day suspension for "loafing
and
lounging in
a car" while on duty in violation of Rule 47 of
the Carrier's Book of Rules. Careful review of the record leaves
no doubt that Claimant was, in fact, sleeping on duty in the
Inspection Shop at approximately 10:00 A.M. July 20, 1972.
Petitioner asserts that the discipline assessed was unjustly
severe. Upon review of the record we cannot agree. Claimant, an
employe with less than two years' service, has a record of prior
progressive discipline assessment on two occasions with this
Carrier. In the circumstances, the 60 day suspension is not
unreasonably harsh.
Form 1
Page 2
Award No. 6794
Docket No. 6534
2-PATH-CM-'74
The sole remaining issue presented by this claim relates to
the suspension of implementation of the assessed discipline. The
uncontroverted record shows that Claimant enlisted in the United
States Air Force and thereafter entered military service on August
7, 1972, one week befgre the discipline was assessed. While in
military service, Claimant is on leave of absence from Carrier. In
these circumstances, Carrier, in its letter of August 14, 1972
notifying Claimant of the hearing results, stated as follows:
"... you are to be suspended for a period of
60
days upon your
return to active service with PATH following your tour of military
duty."
Petitioner contends that the Railway Labor Act, as amended, and
the Agreement of the parties contemplate prompt disposition of
contractual disputes, and with this we agree. Petitioner further
asserts, however, that Article III, Section 11 of the controlling
agreement requires that the suspension for
60
days must be served
immediately upon the decision of the hearing officer or not at a11.
We cannot concur that this necessarily follows from either the Act
or the agreement herein.
In our analysis of this claim we focus on the voluntary and
self-initiated nature of Claimant's inability promptly to serve the
assessed suspension. When, as in the instant case, such impossibility
of immediate discipline assessment is self-caused, Claimant cannot
validly protest the holding over of justifiable discipline until
his return to service. We do not here decide or suggest that the
same result must follow where a truly supervening force beyond the
control of the employe prevents the prompt imposition of discipline.
Such a case must turn on its own merits if and when it arises. We
do hold that in the circumstances of the instant case Carrier did
not act unjustly in holding the suspension
in
abeyance until Claimant's
return from military.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By _
Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 3rd day of December, 1974.