Foam 1 NATIONAL l3AILR0AD ADJUSTMENT BOARD Award No.
7153
SECOND DIVISION Docket No.
6960
2-PCT-MA-'76
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
( Penn Central Transportation Company
Dispute: Claim of Employes:
1. That there were no facts to sustain the action of the Penn Central
Transportation Compaa~,y in assessing the five
(5)
day actual suspension and twenty five day
(25)
record suspension following the
investigation held on Machinist J. Davis held on October 11,
1973.
2. That the hearing was held in violation of Rule
36 & 26
of our
controlling agreement.
3.
That the Penn Central Transportation Company reimburse Machinist
Davis for the wages :Lost and arty fringe benefits, vacation time,
Insurance etc., that he lost during the five day actual suspension.
4.
That this be removed from Mr. Davis's record, five day actual and
twenty five day record suspension and he be made whole.
Findings:
The Second Division of the Adjustment,Boaxd, upon the whole record and
all the evidence, finds that: ,
The carrier ox carriers a;nd the employe or employes involved in this
dispute axe respectively carrier-and employe within the meaning..of the
Railway Labor Act as approved June 21,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was notified to .report fox a hearing on a charge of being involved
in an illegal and unauthorized work stoppage and leaving the property without
proper authority.
Subsequent to investigation, he was assessed a
60
day actual suspension.
Form 1 Award No.
7153
Page
2
Docket No.
6960
2-PCT-MA.-'76
During the handling of the matter on the property, the discipline was
modified to a five
(5)
days actual suspension and twenty five
(25)
days
record suspension.
The Organization has raisec. certain procedural matters in addition to
submitting a defense on the merits.
It is urged that the Carrier did-not provide a fair hearing, in violation
of Rule
36,
because Carrier "refused to allow the charging officer to be
questioned at the hearing
by
not having him present." At page
6
of the
Transcript of Hearing the General Chairman stated that he would like to
question Mr. Antel, the General.. Foreman, who was not present. Thereafter,
the parties considered the request, and debated the question of whether or
not he was the "charging office:.^". We have considered the Organization's
cited authority, and have noted a Carrier's duty to present all "material"
evidence of which it has knowledge bearing upon the question under
investigation (First Division Award
524$)
which includes evidence that tends
to ".., explain, justify ox deny the charges." (First Division Award
8260).
Nonetheless, we feel it is incwubent upon the Employee to specify, in some
reasonable manner, the type of material evidence which is assertedly being
withheld from the investigation. We do not feel that the claimant made such
a showing. Further, from our review of the record and understanding of the
facts which surrounded the asserted misconduct, we fail to understand what
factual information could havebeen provided.
The Claimant alleges a violation of Article
35
because the shop manager
refused to enter into a joint statement of facts. Article
35(b)
directs
that a joint statement shall
be
prepared should the case remain unsettled
after conference with the highest local .official, at the point at which the
grievance originated.
The notification of intention to file
ex
pane submission in this case
asserted a violation of Rule
36
and
26.
It did not claim a violation of
Rule
35,
and accordingly that assertion is not properly before
us.
The assertion that Rule
26 was
violated was not substantiated. Rule
26
states that investigations will be held if possible during the time the
employees are on duty. Thus, there is no absolute requirement. In addition,
we find no indication of record that the Employees raised the alleged procedural
deficiency until some time after the investigation was conducted, even
though there was ample opportunity to lodge an objection in a timely manner.
Concerning the merits of the dispute, the record demonstrates that another
employee, Rudolphy, had been dvirected to work in an area different than his
usual location (drop pit). The Claimant (hotel Chairman), Rudolphy and
17 other Machinists were located in the lunch roomy rather than at their
assigned work sites. When asked why the 19 employees were in the lunch room,
Carrier witnesses testified that Claimant stated that he would return to
Form 1 Award No.
7153
Page 3 Docket No. h~62-PCT-MA-1 '(~
work "... when Mx. Rudolphy goes back to the drop pit."
The employees were then ::nstxucted to return to work, but no one left
the lunch zoom. When they were warned about insubordination charges,
Claimant advised that all of the employees were sick. At no time material
to this dispute did arty of the employees advise supervisory employees that
they were ill.
The Shop Manager - who had been suxranoned from home - was asked fox time
cards at about 1:05 a. m. However, the Manager denied the request and advised
that the men who "quit work" at 11:30 would be paid one-half hour's time.
Shortly thereafter, Claimant ;end others left the property, "without permission."
The claimant insisted, a:t the investigation, that he was in the lunch
room because he was sick. Howevex,.he refused to elaborate and when asked
the nature of the illness, medical attention sought, etc., he stated it eras
"personal".
Claimant asserts that he can not be held responsible fox leaving the
property without authority, inasmuch as the Shop Manager advised that he was
not being compensated after 1:1:30 P.M. Although the Manager stated that
there was no permission grant°d to leave the property, the record is xG.`;"~e::~unclear as to the basis for his "payment for one-half hoax" statement.
r.-
we read the cold record, it would appear that the employees had no reason
to remain at the property,-and that they could have reasonably presumed
that they were free to leave inasmuch as they were no longer in a pay status.
It is interesting to note that the Carrier official who modified the quantum
of discipline found that the record ", . . adequately substantiates that . . .
were involved in an illegal and unauthorized work stoppage." However,
he makes no mention of the charge that claimant left the property without
proper authority.
Based upon our consideration of the entire record, we fail to find that
Carrier presented substantive evidence to show that Claimant was guilty of
departing the property without proper authority.
However, we find that svbstantive,evidence was presented to support the
finding that Claimant was involved in an illegal and unauthorized work
stoppage. We feel that the evidence referred to above is directly demonstrative
of such a conclusion. The fact that one Machinist and one helper may have
remained at their work stations, and that other craft employees remained at
work, does not alter that cor.;clusion. Claimant's testimony at the hearing
was not persuasive to Carrier, and does not operate to rebut the rather
obvious inferences of the claimants' intentions.
Under all of the circumstances we axe unable to find that the discipline
imposed was excessive.
Foam 1
Page
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
713
Docket No.
6960
2-PCT-MA-'76
A Trf A R D
Claim denied as stated in the Findings, above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By / -G~.I~LJYt.~.~~
v
150-SL-Marie maxie Bxasch - Administrative Assistant
Dated at Chicago, Illinois, this 29th day of October, 1976.