Form 1 NATIONAL RAILROAD
ADJUSTMENT
BOARD Award No.
7454
SECOND DIVISION Docket No.
7323
2-z&N-CM-
'78
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation No. 91, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1. That Upgraded Cayman Apprentice R. W. Smith was dismissed from
service in violation of the current agreement on March
17, 1975,
and
2. Accordingly, the Louisville and Nashville Railroad should be
ordered to
(a) Restore him to service with seniority and all employee rights
unimpaired.
(b) Compensate h:Lm for all time lost as a result of his dismissal
with interest at the rate of
6%
.per annum on all money due
him, and
(c) Pay premiums for his hospital, surgical, medical, group life
insurance and supplemental sickness benefits for the entire
time he is withheld from 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,
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, R. W. Smith, was working as an Upgraded Apprentice Cayman
at the time of his dismissal from service in March
1975
for an incident
occuring on February 18,
1975.
There is virtually no dispute relative to the
facts of this case. On the morning of February
18, 1975
he called Carrier's
office and advised that he would be late to work because his mother was ill
and he had to take her to the hospital. As he later admitted at his hearing
Form 1 Award No.
71+51+
Page 2 Doch t No.
7323
2-L&N-CM-'78
and investigation on February
,-`5, 1975,
however, the real reason for his
absence from work that play wan to appear in Police Court to answer charges
stemming from h~1 a arror;t nf.-voral ri.vyr3 nrL.r..l. t or . 'T'lr details and outcome o!'
his court appearance are not relevant herein, wince the reasons for his
discharge by Carrier are as contained in a Notice dated February
20, 1975
as follows:
"On February
18, 1975,
you were absent from your assigned
duties (5) hours. You, in fact, called in, stating that
you were taking your Mother to the hospital, this being
'your' reason for being absent.
It is known at this time, that you did, in fact, falsify
your reason for being away from your assigned duties on
the date of
2-18-75.
Therefore, you are hereby charged
with falsifying your absence of
(5)
hours on
2-18-75
and
an investigation of these charges will be held February
25,
1975,
10:00 a.m., 3rd Floor Office Building, Mr. N. R.
Bishop's Office.
Please arrange to be present with any witnesses and
representation, if desired."
Apparently unknown to Claimant, the details of his arrest were printed _
in the local newspaper of general circulation and this was brought to the
attention of his Division Manager at or about the time Mr. Smith reported
his anticipated absence from work under Rule
22.
Rule
22
reads as follows:
"An employe detained from work account of sickness or other
good cause shall notify his foreman as early as possible."
At his hearing and investigation Claimant was belatedly forthright in
his explanation for his absence:
"Q. Please give us what information you can in this case.
A. I was in Police Court and I called in giving a reason for
being absent for 5 hours. The reason I gave was that I
was taking my mother to the hospital. I gave this reason
because at the time I was ashamed and so embarrassed at
where I was. It's not that I meant to break a rule or
hurt the company in any way. It's just that I gave that
reason at that time. If the company wishes to hold me in
service, I promise that something like this will not happen
again.
Questioned by J. J. Keefe - Staff Assistant
Q,. Mr. Smith, did you admit the following day, February
19
to Mr. Bishop and in the presence of L. A. Masticola that you
did falsify your excuse for being late that morning?
A. Yes
Form 1
Page
3
Award No.
7451+
Docket No.
7323
a-L8r.N-CM-'
78
"Questioned by h. A. MasticoLa - Focal Cliairman
Q. Mr. Smith, on the morning of
2-18-75
when you called in, did
you state what time you'd be to work?
A.
Yes. At 12:00 p.m.
Q. Did you come to work after dinner?
A. Yes."
There is no question that Claimant is culpable of precisely the misconduct
with which he was charged. He did falsify his excuse for being late. Nor
from what we know of this particular record did he have a "good excuse"
for his absence. His misconduct cannot be condoned and Carrier was within
it's rights to discipline him. But in the particular facts and circumstances
of this case, the maximum discipline of dismissal is inappropriate. The
discipline of suspension without pay should serve to notify Claimant of the
wrongfulness of misconduct and prevent arty recurrence. We find that he
should be reinstated in the service of Carrier with seniority and other
rights unimpaired, but without compensation for time lost.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJMTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
0/
By
R semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 31st day of January,
1978.
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