Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7617
SECOND DIVISION Docket No. 7388
2-C&NW-CM-'78
The Second Division consisted of the regular members and in
addition Referee Robert A. Franden when award was rendered.
( System Federation No.
76,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
_ (
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Carman Kenneth Gil1e was unjustly dismissed from service on May
28,
1876.
2. It must be realized that there were extenuating circumstances in
this case and the action of dismissing Carman Gs.lle from service
was arbitrary, capricious and unwarranted under those circumstances.
The Carrier was completely in error in dismissing Carman Gille,
an employe of 10 years of 1 ong and faithful service with an
unblemished good service record, as dismissal is the ultimate
penalty.
3.
That the Chicago and North Western Transportation Company be
ordered to reinstate Caxman Kenneth Gi11e with seniority
unimpaired and compensate him for all time lost at 8 hours per
day, plus any other benefits he would be entitled to under Rule
35.
Findings:
The Second Division of tile Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe ox employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as 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.
Claimant i,7a,s dismissed from the service of the carrier for advising
a fellow employee to claim an off-duty injury as an on-duty injury.
The facts in the case reflect that :in a conversation held in the
early morning hours when the claimant z~ras in an inebriated condition he
advised a fellow employee to claim that an injury obtained while playing
football occurred while on duty. The following morning the employee took
claimant's advice and lied to the carrier.
Form 1
Page 2
Award No.
7617
Docket No.
7388
2-C&NW-CM-'
78
There is no excuse
fox
the behavior of the claimant. As a union
,representative it is expected that he will advise his membership properly
and not in such a manner as to be fraudulent of the carrier or to subject
one of his membership to discipline. However, in view of the circumstances
existing at the t9-me the advice was given, we are inclined to be lenient
in this case. Had such advice been given during regular business hours
during an interview with one of his membership rather than in the early
morning hours while in a state of inebriation we would have no compunction
about sustaining the dismissal of the claimant. We do feel that the
circumstances in this case should mitigate the punishment. This is especially
true in this case where there is no evidence of other discipline problems
with this employee during his service with the carrier.
Accordingly, we find that the claimant should be reinstated with
seniority rights intact but without compensation fox pay lost.
A W A R D
Claim sustained in accordance with this opinion.
NATIONAL RAILROAD ADJUSTPEIV`I' BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
no
&marie yBrasch - Administrative !Assistant
Dated
at
Chicago, Illinois, this 21st day of July,
1978.