Form 1
Parties to
Dispute: Claim of Employes:
NATIONAL RAILROAD ADJUSTMENT BOAS Award No. 7560
SECOND DIVISION Docket No.
7I+66
2-MP-SM-'78
The Second Division consisted of the regular members and in
addition Referee Arthur T. Van Wart when award was rendered.
Sheet Metal Workers' International
Association
Missouri Pacific Railroad Company
1. That the Missouri Pacific Railroad Company violated the controlling
agreement, particularly Rules 17, 32, and
33
when they unjustly
dismissed Sheet Metal Worker A1 Meyer, Jr. from their service
effective February
19, 1976.
2. That accordingly, the Missouri Pacific Railroad Company, who
returned Sheet Metal Worker Al Meyer, Jr. to service on April
19,
1976
with all seniority rights unimpaired, now be ordered to
compensate him as follows:
1. Compensate Claimant for all time lost, three hundred
fourty-four
(344)
hours.
2.
Make Claimant whole for all vacation rights.
3.
Pay Hospital Association dues for all time out of service.
4.
Pay the premiums for Group Life Insurance for all time out
of service.
7.
8.
o,
Findings:
Pay Claimant for all holidays.
Pay Claimant all sick pay.
Pay Claimant for all insurance premiums.
Pay Claimant for all. Jury Duty lost.
Remove the -two (2) slanderous letters from Mr. Met'er's
personal record marked as Exhibits C and D in Transcript.
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+.
Form 1 Award No.
7560
Page
2
Docket No.
7466
2-MP-SM-'78
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, prior to January
28, 1976,
held a ,regular assignment as a
Sheet Metal Worker at North Little Rock, Arkansas with hours 11:00 p.m.
to
7:00
a.m. He was notified to appear for formal investigation:
"...
to determine the facts and place your responsibility,
if any, for allegedly being absent from your assignment,
11:00 p.m., January 22,
1976
to
7:00
a.m. January 23,
1976,
without proper authority, and a review of your attendance
personal record files."
As a result of the investigation, which, after postponement, was held
February
6, 1976,
Claimant was adjudged guilty as charged and was assessed
sixty (60)
days actual suspension as discipline therefor, effective
February
19, 1976.
The Employees contend that Claimant was unjustly suspended because
he was not given a precise charge, that it was not a fair and impartial
investigation which involved two charges, that Claimant violated no rule
of the collective agreement on January 22,
1976,
that Claimant was sick,
had visited a doctor and fZrnished a Doctor's statement so attesting, that
a fellow worker had advised the foreman that Claimant was sick, that Carrier
did not prove Claimant was not sick and that Claimant had not notified
Carrier in accordance with Rule
17,
that claimant was a third shift
committeeman who had zealously protected the Agreement with the result that
Claimant was threatened to be fired by the General Foreman.
The Board finds that Claimant was accorded due process. The charge
given Claimant was precise. It narrowed the issue to Claimant's absence
from his job, which obviously was known to Claimant, on January 22,
1976
and, because of such absence, to review his attendance record. In the
circumstances it is found that the notice clearly apprised claimant as to
what he was being charged with and why. It was sufficiently clear as to
permit Claimant to understand the alleged dereliction of duty which gave
rise to the need for holding an investigation. Such charge need not contain
reference to a rule, or rules, allegedly violated. Here, Claimant knew with
particularity as to what he was being charged with. He could therefore
prepare his defense. The record shows that he offered a defense.
Claimant was well represented. Perhaps he was overly represented by three
Committeemen, whose degree of participation in the examination process
undoubtedly led to their allegation that the hearing officer was limiting
their right to cross examination because he would not permit certain
questions to be raised. Restricting the scope of cross examination to
issues raised in direct examination is not held to be error.
Form 1 Award No. 7560
page
3
Docket No.
7466
2-MP-SM-'78
There was sufficient evidence adduced to support Carrier's conclusion
as to Claimant's culpability. The record reflects that claimant was absent
from his regular work shift on Jarnzary 22, 1976. It is clear that claimant
had neither asked for nor received permission for such absence therefrom,
that claimant had failed to notify his supervisors of such absence and
that claimant was aware of the standing instructions concerning absence
from duty to seek permission and report off to the proper supervisors.
Rule 17, which was clearly violated, provides:
"Employees 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."
A lay-off, or absence, by an employee from duty, by the very nature
of the employer-employee relationship, requires permission from his employer.
Such permission, however, may not always be granted. However, sickness, or
other serious cause, for laying off may, in some circumstances, as in
Rule
17,
aleviates the need for requesting such permission. However, such
relief does not elimimte the need for an employee so affected, to report
the fact that an illness or such other good cause, will prevent his
reporting for duty, to his foreman. Rule 17 also requires that such be
reported promptly.
It is held that Claimant by advising his foreman, upon his return to
duty, from his absence some 79 hours later, cannot be construed to have
been "prompt advice", even if claimant had been sick as he alleged.
Claimant's testimony that he had overslept after seeing the Doctor and the
vagueness of the Doctor's statement eliminated "sickness" as being the
reason for failing to report off. Such an employee failure is deleterious
toti:.e efficiency and safety of Carrier's operations. Further, it violates
the implicit promises and obligations exchanged in the employer-employee
relationship. As pointed out in Third Division Award 18387:
"The employment relationship and the control itself are
promises on the understanding that employees will
perform the work for which they were employed ....
Additionally, the contract clearly spells out on what
days and under what circumstances employees shall b e
excused from reporting to work, demonstrating the
unambiguous intent of the parties that, except where
provided by contract, employees shall b e expected to
perform their duties on each day called for by the
bulletins under which they work. It follows that if
the Carrier has the right to rely on employees
performing their duties on each day called for by
their bulletins, the Carrier has a concomitant right
to be notified when those duties will not be performed
so that alternative - measures may be taken if
necessary to carry on the business of the Carrier."
Form 1
Page
Award No. 7560
Docket No. 7466
2-MP-SM-·78
Claimant's statement that he was threatened because he was an active
committeeman, in the absence of any supporting evidence, places it in
the category of being an unsupported self serving assertion.
The Board. ordinarily would not interfere with the discipline assessed
claimant. The record reflects that no discipline was ever assessed
claimant for his horrendous work attendance record attained during the
period, December 31, 1971 to January 22, 1976. Notwithstanding, it is
believed in such particular circumstance that a 60 day suspension was
haphazard and an abuse of managerial discretion, the discipline was not
corrective but punitive. Consequently, it is reduced to a thirty (30)
day suspension. In view of the foregoing findings, it is unnecessary to
reach and decide other issues raised in the Employees claim.
A W A R D
Claim (1) denied.
Claim (2) disposed as per findings.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTIENT BOARD
By Order of Second Division
By ,_l -~ e-_
n-rN-A-'J
-semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 16th day of June, 1978.