Form 1 NATIONAL RAILROAD ADJUSTNL'.~T BOARD Award No.
6831
x
SECOND DIVISION Docket No.
5791
2-C&O-EW-'75
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. of L. - C. I. 0.
Parties to Disrute: ( (Electrical Workers)
( The Chesapeake & Ohio Railway Company
Dispute: Claim of Employes:
1. That the Chesapeake and Ohio Railway Company violated the
current agreement when it unjustly dismissed Electrician
Randolph Vance from service on July
30, 1968.
2. That accordingly the Chesapeake and Ohio Railway Company be
ordered to restore Electrician Randolph Vance to service and
compensate him for all time lost subsecrient to and including
July
30, 1968,
and restore all other benefits he would have
had if he had remained in service.
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.
Parties to said dispute waived right of appearance at hearing
thereon.
Pursuant to an Order entered by the U. S. District Court for the
Eastern District of Kentucky remanding.two sustaining Awards to this
Division for clarification of our Awards, the Board makes .a further
finding with respect to Claimant's monetary recovery.
In Docket No.
5791
(Award No.
5923)
Claimant was charged with
falsifying his reasons for being absent from his regular assignr.-ent on
Ja nzary
28, 1968.
Investigation and hearing was originally scheduled
for February
7, 1968,
but was postponed setreral times by Claimant or
his representative because of illness.
Form 1
Paoe 2
Award No.
6831
Docket No.
5791
2-C&O-EW-'
75
On Saturday, June 15,
1968,
while the investigation and hearing
were pending Claimant was observed by Carrier officials sitting at a
table rented by his teen-age son at a place called the Ashland Swap
meet. A Carrier official purchased four dated pennies from Claimant
for
$.50.
Claimant was charged with engaging in other employment while
absent on leave. Hearing and investigation of this charge (later
identified as Docket No.
5799
- Award No.
5927)
were combined with
hearing and investigation of the earlier charge, and.both were finally
held on July
9, 1968.
As a result, Claimant was found guilty as to each charge and
dismissed from service effective July 30,
1968.
Claimant filed two
separate grievances, each claiming unjust dismissal and compensation
"for all time lost subsequent to and including July
30, 1968,
and
restore all other benefits he would have had if he had remained in
service."
Each of the Grievances was sustained, effective April
30, 1970,
and directed Carrier to restore Claimant to service and to compensate
Claimant for all time lost subsequent to and including July
30, 1968.
The Awards did not make specific findings as to whether such lost time
had actually accrued, or whether the Carrier was to pay for lost
time, if any had accrued, at the full rate or at a rate adjusted by
the amount of disability or unemployment compensation received by
Claimant.
As determined by the Court, Carrier there upon ordered Claimant
to undergo a physical examination prior to re-entry into service, and
at the conclusion of the examination Claimant was found to be unqualified
for railroad work. Thereafter, Claimant was granted a disability annuity
by the Railroad Retirement Board effective April
26, 1970.
Accordingly, the Board directs Carrier (1) to make a determination
as to whether such lost time had actually accrued during the period in
question, and
(2)
if so, to pay Claimant for such lost tame at a rate
adjusted by the amount of disability or unemployment compensation
received by Claimant.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
B5' / °~ d
i
osemarie Brasch - Haministrative Assistant
Dated at Chicago, Illinois, this 11th day of March;
1.975.