. Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 701.7
SECOND DIVISION Docket No. 6816
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation No. 4, Railway Employes
( Department. A. F. of L. - C. I. 0.
Parties to Dispute: ( Carmen
( The Chesapeake and Ohio Railway Company'
Dispute: Claim of Employes:
1. That Carman, Harry T. Soard's name has been unjustly removed
from the Carmen's seniority roster at Stevens, Kentucky as
result of hearing held June 1, 1973 in conference room,
Stevens Shops, Silver Grove, Kentucky.
2. Accordingly Carman, Harry T. Soard's name should be restored
to the Carmen's seniority roster at Stevens, Kentucky and
Soard is entitled to be compensated for all time lost account
being improperly held out of service, commencing May 14,
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 a s 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.
The facts out of which this claim arose are not in dispute. Claimant
Harry T. Soard was employed by Carrier as a freight car repairer (Carman)
at Stevens, Kentucky. The uncontroverted record shows that during 1973,
while on furlough status as a Carman, Claimant was afforded Temporary Employment During Furlough (TEDF) as a yard brakeman at Stevens. Claimant was
recalled to service as a freight car repairer on April 9, 1973. On Monday,
May 14, 1973 Claimant was assigned to work as a Carman on the second shift
3:00 p.m. to 11:00 p.m. There is no doubts and indeed Claimant admits,
that he telephoned his Acting Foreman a t 2:05 p.m. on May 14, 1973 and marked
off his regular carma n's position in order to work instead a yard brakeman'S
,;position. Thus, Claimant did work the second shift yard brakeman's position
Form 1 Award No. 7017
Page 2 Docket No. 687.6
2-C&O-CM-176
3:00 p.m. to 11:00 p.m. after marking off his Carman's position. Therefore,
by letter dated May 15, 1973 Claimant was informed as follows:
"Hearing will be held at 1 P.M. Friday, May 18, 1973, in
the Conference Room, Stevens, Kentucky, at which time you
will be given opportunity to show cause, if any, why your
name should not be dropped from the Carman's Seniority
Roster, Stevens, Kentucky, under the provision of Rule 21(b)
of the Shop Craft Agreement.
"This letter will also advise you that you will not be permitted to work as Carman pending hearing and decision in
this case."
Following a hearing finally held after adjournment on June 1, 1973, Claimant
on June 15) 1973 received the following notification:
"It has been found, as the result of this hearing that you
failed to protect your Carman assignment and therefore,
were in violation of Rule 21(b) of the Shop Craft Agreement
and your name has been dropped from the Carman's Seniority
roster at Stevens, Ky."
The Organization presented the instant claim for Mr. Soard on July
10, 1973 alleging that Claimant's name was improperly removed from the Carmen's
Seniority Roster and seeking his reinstatement to same. The underlying
basis for this position was stated in the Local Chairman's letter of July
10, 1973
to wit:
"Rule 21 of the Carman's Agreement does.not specifically
prohibit
a Carr=n from marking off his assignment as
Carman on a daily basis and performing service in another
craft covered by another agreement."
Finally, the Organization argues that Claimant was unjustly "disciplined"
and that "removal from service" is too severe a penalty for the offense
involved.
Carrier maintains that this is not a discipline case at all but
rather that Soard's removal from the list is a self-executing phenomenon and
specifically provided for in Rule 21(b). Thus, Carriers set forth its
basic position in the final denial letter dated November 29, 1973 as follows:
"Contrary to your contention, Rule 21(b) of the Shop
Crafts Agreement is applicable to this case. There was no
special provision made as required by that rule to permit
Soard to engage in other employment while on leave from or
marked off his regular assignment. The provisions of Rule
21(b) are mandatory and self-executing. Having developed
at the hearing that Soard had engaged in other employment
without special provisions being made to cover, the rule
,.-- Form 1 Award No. 701,7
Page 3 Docket No. 6816
2-C&O-CM-'76
specifically provides that he lose his seniority. You refer
to Soard's loss of seniority as discipline however Soard was
not disciplined. The hearing did not cause this loss, it
merely established the fact that such loss had occurred and
that his name must, therefore, be dropped from the Carmen's
Seniority Roster. Had this not been done, Carrier would
have been in violation of Rule 21(b). You point out that
Soard was allowed vacation pay in the pay period. ending
September 21, 1973 at the carmen's rate of pay, owever, the
allowance of such payment is immaterial to the issue here
involved. The fact still. remains that Soard forfeited his
seniority as carman May 14, 1973, as was ascertained at the
June 1, 1973 hearing. Actually, it would have been proper
to allow the vacation pay due him a t that time, however, this
was overlooked and the vacation pay was not arranged for until
Soard made request for same."
We concur with Carrier that this is not a discipline case as such. Rather,
the sole question presented on this factual record is whether Claimant
violated Rule 21(b) by marking off from his Carman job to work a brakeman's
job on the same shift. The applicable contract language reads in pertinent
part as follows:
"Rule 21. Effective Oct..16, 1947. (a) Employes will
not be permitted to lay off from work without first securing
permission. The arbitrary refusal of a reasonable amount of
leave to employes when they can be spared, or failure to
handle promptly cases of sickness or business matters of
serious importance to the employes is an improper practice
and may be handled as unjust treatment under these rules
and regulations.
"(b) An employe absent on leave, who engages in other
employment, will lose his seniority unless special provision
has been made therefor by the proper official and committee
representing his craft. An employe absent on leave, whose
place is filled by another employes must give his foreman
notice sufficiently in advance of the time that he will report
for work to enable the foreman to transfer the one filling
his place to his regular shift.
"(c) Leave of absence other than for sickness in excess
of 30 days shall be in writing, and copy will be furnished
local committeeman of the craft.
Understanding--Negotiated Fe. 9-22, 1922.
Form 1
Page 4
Award No. 7017
Docket No. 6816
2-C&O-CM-'76
"(1) An employe cannot accept employment while on a
business or pleasure trip without losing his seniority, but
provisions will be made for an employe to accept employment
when on leave of absence, without losing his seniority, when
justifiable reasons can be shown and the railroad can spare
him from service.
"(2) Notice sufficiently in advance of the time an
absent employe on leave will report for work must be given
the foreman to enable him to transfer the one filling the
absent employe's place to his regular shift before returning
to work." (Emphasis added.)
The Awards cited by the respective parties are not directly on point
with this case and none is dispositive of the question presented here. But
our Award 4912 is instructive as to the nature of Rule 21(b) and the effect
of its violation by an employee who engages in "other employment" while
absent on leave. And Award 6458 presents a case similar enough to the present
dispute to provide meaningful precedent. In our considered judgment Claimant
Soard did violate Rule 21(b) by his admitted actions on May 14, 1973 thereby
incurring that Rules' automatic consequences.
The
claim must be denied.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
',o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of March, 1976.