Form 1 NATIONAL RAILROAD APJtJSTT42ENT BOARD Award' No. 76.'1
 SIJCOi;L DIVISION Docket No. 71i-O9
 2-h~-CM-' 78



Parties to Dispute: ( (Carmen)
 ._ (
 ( Missouri Pacific Railroad Company

 Dispute: Claim of Employes:



Fi.ndin~'s

 The Second- Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The cattier or carriers and the employe or employes :i-nvo:!.ved in this dispute are respectivel-y carrier and employe within the meaning of the I,aiaway Labor Act as approved June 21, 193+.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

On October 30, 1.97> a con'trac'tor t,Tho -was employed by the carrier to secure lading in defective cars or transfer lading when necessary made repair:> to a defective car door to prevent the leaking of ~;ypsan rock. The organization has progressed this claim on the grounds that the work in question was Carmc:n's work described in Rule 117 and sperific«l7y reserved under Rule 26A.


Form 1 Award No. 7621
 Page 2 Docket No . 7409
 2-MP-CM-'78
 "RULE 117. Carmen's work, including regular and helper
 apprentices, shall consist of building, riaintaining,
 painting, upholster. in:a.nd inspecting of all passenger
 and fxeigH cars, bath wood and steel, planing mill,
 cabinet and bench carpenter work, .pattern and flask
 making and all other carpenter work in chops; car7nen's
 work in building and repairing motor cars, lever tax's,
 hand cars and : ta.tian trucks; building, re
 pairing,
 feInovlYlr; and applying wooden loco:notitre cabs; :pilots,

















The work perfox:~,ed by the contractor in this case was the use of a torch and maul to cut a hole in the door in order that a bolt might be put in place to secu?'e the door and eliminate the problem of the leaking gypsum rock. The canr'ier contends that this was not a repair to the car such as would come vAthin "maintaining" as set out in Rule 117. The carrier claims that it was merely a tezn~pora,xy measure taken to secure the load until such time as a proper repair could. he made when the car reached its destination.

 The second edition of Webster's New International Dictionary defines maintain, as "to hold or keep in any condition, especially in a state of efficiency or validity".

 We do not believe that the temporary n ature of this repair removed it from the definition of maintain. The object of the work vras to 1>eep the car door.' in an operating condition i.e. closed securely. This was not merely ja:rLnning something a. ai.nst the door. or the like but involved the use of tools and equipment. This was work which was reserved to the carn.en and to assign it to an outside contractor 'c-ra;> viola i.vTe of the agreement.
 Form l Award No. 7621
 Page 3 Docket ITO . 71E09
 2-MP-CM-'78




                          By Order of Second Division


Attest: Executive Secx'ctary
 National Railroad Adjustment Board

 , . ...R. ~ -. ..

 BS 2v .~'_ ~_ `_ ._ -.- ,.- :_.: , 4- ~_ - -f __

 r

 Rose:r:aric: ,u_~ascli - t .c~:a-i_nis-i;ra-LW ive Assistant

 Dated at Chicago, Illinois, this 21st day of July., 1978.
 Form 1 NATIONAL IAI:LROIID AD.JUuTMF,1';T BOARD Award No. `1622
 SECOND DIVISION Docket No. 753?
 2-CR-SM-78

    The Second Division consisted of the regular members and in addition Referee: Ralph V. Yarborough when award was rendered.


                ( Sheet Metal Workers` InternationvI

                ( Association

Fatties to D:i srnzte:

 ( Consolidated Pail Corporation

 Dispute: Claim of T,mnloyes:

        1) That under the current agreement, . Sheet Metal Worker 4?m. J. I-Iildebrant vra.s unjustly dismissed from service on January 26, 1976.


    2) That accordingly, the Carrier be ordered to:


        (a) Restore the claimant to service with a1_1 seniority rights unimpaired.


        (b) Compensate claimant for alltime lost.


        (c) Make c:lairiant whole for all vacation ri.-hts.


        (d) I'ay :orer-Iurns (or hospital association d-aes) for hospita,l, surgical ~ and. medical benefits for all time hell out of sei-vice.


        (e) Fay ,prerz:i.ums for group life insurance for all time held cut of service.


Fi.nc:ings:
The Second Division of the Adjustment Boat°d, upon the whole record and all flue 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 Rai.hray 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.


On January 26, 1976 CCarrier dismissed Petitioner Sheet Metal Worker Wm. J. Hildebran t from service for:
 Form 1 Award No. 7622
 Page 2 Docket No. '1532
 2-CR~-SM-' 7B

        "Excessive absenteeism for the months of Sept.,

        Oct., N-otr. and Dec. 1975, namely, Sept. 26, Oct. 6,

        17, Nov. 5, 1g, Dec. 6, g, 10, 11, 12, 17 and violation of Rule 2 general rules Sept. 26, Oct. 22, 23, N~ov. 20, 21E, 25, 28, 1g75 and Jarrau.ry 2 , 5, :1_g76.


Rule 2, cited in the order of dismissal as a basis for dismissal fox tardy reporting is the 8 dour a day work rule, while Rule 33 is relied. upon by Carrier to support its absenteeism charge. Those two T~1es of the agreement between Carrier and its Union Employes follow:

                    "Rule 2 - Workday


        Eight hours shall constitute a day's work. All exploycs coming under the provisions of this aSrec:)nent, except as otherwise prove ded_ in this schedule of males, or as may hereafter be legally estubl.-.'Lshed be~cirecn the Carrier and the l:np:Lo;,res, shay! be paid an the hourly bas-Is.

                    En~plo-Y'es, shall be paid on the hourly


                  "Rule 33 - Absence from Work


        In case an employe is unavtaidably kept from work he vr:ill not be d.isc:r'irzinated. aSainst. An et:yloye dcta.-fined from work on account of sickness, or. for any otHer good cause, shall not-if- his Fore?rats as early as pow.si.b1e. 11-~nployes ,,.

        are expected to :r:~.~>c advance arrangements if necessary

        to be ausenl, when known.


On January 26, 1976, CCarrier discharged Empla~,re Sheet Metal lo!orker Wm. J. Hildebrant fo r excessive absenteeism not excused by Eule 33,, and late re.portin" ;'o~° worls. in violati on of ttze 3 hour i,Tt:)rl-.dc~y Rule No. Thus action vas taken. upon tW follo:~.:it~ ,-Tork recorl.:

        Absenteeism On Sept. 2b, Oct. >, 7, 17, TvIOV. 5, 19,

                                          ,

        Dec. 8, g, 10, 11, 12, 17 and a16, 1g75.


        Tardiness in reporting for work:


        Sept. 26, 1.g75 - 1 hour late -worked 7;2 1 hours

        Oct. 22, 1975 - ~hour late -worked 7--1 - Lours

        Oct. 23, 1975 - 1 -1. hours late -wori;:ed 6-z hours

        Nov. 20, 175 - 1 hour late -vrorl::ed 7 hours

        Nov . ?) i, 19, 7 5, _ 1 hour late -vrorked 7 hours

        Nov. 28, 1875 -- :L hour late -worked 'T hours

        Jan. 2, :1g 7 6 - 3 hours late -worked 5 hours

        Jan. 5, lg'l6 - Z. hou.r late -workc:d 7 hours

Form 1 Award No. '?C22
 Page 3 Docket No. 7532
 2-CR-SM-'78

 In support of its drastic action, Carrier contends that Employe had received discipline on two prior occasions for the same charge during his two years o f employment b5· the Carrier, and that his vorh habits did not improve. Record, p. 3i+. Employe responded with a doctor's excuse for his absence from Dec. 8th to Dec. 15, 175, and stated that he got hurt on the job Dec. 16th as the reason for his absence on Dec. 17th, 175 and that on Dec. 26th they had a lot of snow and that employe had an accident on the v-ay in to work, that pan. 2nd., 1976 the turnpike was caused down and all the roads were packed with cars, and that the delays on other days were the result of traffic. R. 79, R:nploye also testified that he called the Diesel ; hop in sufficient time to report off (Rule 33) on the dates of Oct. 6, 7, 17, Nov. 5, Nov. 19, Dec. 17, and Dec. 26, (Record, 80), and his testi.rror!,y on that point was corroborated by others (Record, b0).

 However, the record shows that Employe TIz.ldebran'c lived 86 miles from his place of work, traveling that distance back and forth. each day, hampered by snow on co:1.d winter days, but testified drat rye was planning to make arrangements to stay in a, rooming house four nights a week near the site of his job. Record, 81.

 Mr. Z. A. Fal]~owskv , Supt. Locan?otive Shop, testified that Employe Hildebrant was a very good worker in the shop "when he does work". a. 81. J. Jud~;e, Local Co_r`llittee::a,zz, Sheet Metal Workers, testified that Employe Fii:Ldebranv's work "has always been very satisfactory and I'm very satisfied with his work 1I1 the Mort DG'1Sel 4 t.Op". R. CO..

 From the record, we find that Employe Hildebrant is a 6ood arid satisfactory ~;orr.er :i n tire shop,, but with an unsatisfactory record oz: lateness (being late is not being assent). We find that a?~z,~ absenteeism or lateness were caused primarily bar Employe living 86 miles from his job, his other problems caused thereby have been intensified by winter snowstorms.

 We find that employe promised to find a room near his mark for four nights a week if his employment continues.

 Employe's complaint that he was denied a fair hearing because Mr. Falkowsk:i was the accusing officer, and the presiding and hearing officer, and made recommendations for Employe 1-Iildebrant's dismissal, has been held in other Board cases to be insufficient, by itself, to mahe the holding of the Hearing Officer invalid,bat it certainly raises questions of objectivity of the hearing, and further questions of the severity of the discipline administered.

 Carrier's treal;-r:?ent of tardiness as a, violation of Rule 2, the 8 hour rule, is denied. Of tour^e we ate not holding that %,rhcn the Employe is an hour late that he must be paid for a hours' woriL rather than the seven hours he actually worked, nor are we holding that continual tardiness: constitutes satisfactory service.
 Form 1 Page

 Award No. 7622
 Docket 110. 7532
 2-c R-sr.z- t 78

 Railroad Transportation is an exacting industry. Its continued operation demands high efficiency and dedication of all levels of workers and. executives who engage in it. Without that dedication to promptness and efficiency, railroad transportation would utterly fail.

 In order to maintain that efficiency, we recognise the right of the Carrier to discipline Employes for infraction of the contract Rules agreed upon between the Carrier and hr::ployes, to protect the rights of each, and to assure the safe and efficient operations of Carrier.

 We find that Employe reported off on the days he was absent. While this does not make excessive absenteeism blameless, reporting off reduces its gravity to that of a less nature.

 Under all the facts in this case, we find that the discipline inflicted, that o?' dismissal, a lnost total economic execution, to be excessive, and we order C1ai_m:ant restored to service with his seniority 'tights unimpaired zritu 60 days' pay.

 Z^1e 1 ack power to order Claixra.nt to use part of the 60 days' pay to find lodgings near his place of employment, to be construed as approval the record of employe in this case, but since he is a good worker, its purpose -i s to give him an opportunity to :cove in near his work, where satisfactory perforrra.tzce may be had.

 A VI A R 1)

 Claim. sustained as modified by the FdndinGs.

NATIONAL BAIT ROAD AD-J_UST!T,,NrT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Boai-d

 --Rosemarie _t3ruscit - Ad:uini.;trativG-vssistant

 Dated at Chicago, Illinois, this 21st day of July, 1978.