Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7404
SECOND DIVISION Docket No.
7280
2-MP-CM-'77
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated the controlling
agreement, particularly Rule
17,
when Caiman C. Allen, Settegast
Yard, Houston, Texas, was unjustly withheld from his regular
assignment September
20, 1975.
2. That accordingly, the Missouri Pacific Railroad Company be
ordered to compensate Caiman C. Allen in the amount of eight
hours
(8')
at the straight time rate for September
20, 1975·
Findings:
The Second Division of the Adjustment Board, upon the whole record and
a71 the evidence, finds that:
The carrier or carriers and the employe ox 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 reported for work at 11:20 p.m., 20 minutes after his assigned.
starting time of 11 p.m. He had not advised the Carrier of his anticipated
tardiness by telephone prior to his arrival. His explanation was that he
had to repair a flat tire on his car while en route to work and that he
had telephoned his supervisor, but there was no answer when he did call;
and that he proceeded to work as quickly as possible rather than incur a
further delay by another telephone. Upon reporting at 11:20 p.m., he was
advised that he would not be permitted to work.
Requiring the immediate assignment of an employe in Claimant's position,
Carrier called for an employe on the overtime roster from the previous
shift. The replacement employe, who was still on the premises, arrived at
11:30 p.m. and filled the Claimant's position.
In this sequence of actions, the Organization claims that the Carrier
is in violation of Rule 17, Absence from Work Without Leave, which reads:
Form 1 Award No . 7404
Page 2 Docket No.
7280
2-MP-CM-'77
"Employes shall not lay off without first obtaining
permission from their foreman to do so, except in
cases of sickness or other good cause of which the
foreman shall be promptly advised."
The Board finds that the Carrier is not in violation of Rule
17. As
stated in Award No. 738+, involving the same Carrier and the same rule:
"As
to Rule 17, the portion referred to by the Organization
simply grants employes a right to 'lay off' where absence
is caused by 'sickness or other good cause of which the
foreman shall be promptly advised.' Even assuming that
in this instance the Claimant advised his foreman as
'promptly' as possible -- that is, by reporting to work -the rule does not go to the issue of whether the Carrier
is required to give work to an employe reporting late."
On a separate aspect of the claim, no proof is shown that the action
taken by the Carrier was a disciplinary measure which would have required
an investigatory process under Rule 32. The Carrier reasonably based its
actions in calling a replacement on the need for prompt performance of the
Claimant's job.
Under the particular circumstances here involved, however, the Board
will find the Carrier in violation of the rules of the Agreement in refusing
to permit Claimant to work upon his arrival. This is based on the Claimant's
entitlement to work on his job under the seniority provisions of the
Agreement, and absent his already having been replaced in his work owing
to his tardiness.
In Award No.
7355
(Marx), the Board found that the Carrier did not
violate rules of the agreement when it refused to permit an employee to
work after the employee reported one-half hour late. But in Award No.
7355,
there is no indication that the Claimant was replaced on his job for
that work shift.
In the case currently before the Board, the Claimant was available
for work before his replacement arrived, and thus could have undertaken
even sooner the pending work assignment. Further, under Rules 4(a) or
4(c), the liability to the called-in employee is limited to either one or
four straight time hours, as may have been applicable. Thus the Carrier's
defense as to additional cost if the Claimant was allowed to work is not
valid.
What is basically at issue is who has the right to work not yet
commenced. Obviously, the Claimant, under seniority rules of the Agreement,
has claim to his own work shift over another employee on overtime call-in.
Foam 1
Page
3
Award No.
7404
Docket No.
7280
2-MP-CM-'77
The Board distinguishes this case from that in Awards No.
737+
and
738
(Marx). In both of these cases, the employees involved reported
42-45
minutes late, had undisputed poor attendance records (lessening the
probability that they would show at all), and had already been replaced.
in their work assigrznents due to their tardiness.
Fox emphasis, it is noted that in the present case, the Carrier
offered no evidence of the Claimant's history of tardiness (except a single
unsubstantiated reference in correspondence). More important, the Carrier
required work to be performed in the Claimant's assignment, and such work
had not yet been commenced when the Claimant reported for duty.
Claimant seeks eight hours' pay in his claim. Since he was unavailable
for a fall work shift, the claim cannot be sustained beyond seven hours and
.4.0 minutes.
A W A R D
Claim sustained as edified above.
NATICdVAZ RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
OF
Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 2nd day of December,
1977.
I"NW