Foam 1 NATIONAL RAILROAD ADJUSTNENT BOARD Award No.
78+2
SECOND DIVISION Docket No.
7627
2-EJ&E-CM-' 79
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( System Federation 17o.
6,
Railway Employes'
( Department, A. F of L. - C I0.
Parties to Dispute: ( (Carmen)
(
( Elgin, Joliet and Eastern Railway Company
Dispute: Claim of Employes:
1. That as a result of an investigation held on April
13, 1976
Mr. J. L. Gilley.was advised that he was dismissed frarn the
service of the Elgin, Joliet & Eastern Railxbad. Said dismissal
is unfair, unjust, unreasonable, excessive, arbitrary, capricious
and in violation of Rule
35·
2.
That the Elgin, Joliet & Eastern Railroad, hereinafter referred
to as the Carrier, be ordered to reinstate Mr. J. L. Gilley,
hereinafter referred to as Claimant, with seniority, vacation and
all other rights unimpaired, plus pay fox all wage loss until
returned to service.
Findings:
The Second Division of the Adjustment Board., upon the whole record and
all the evidence, finds that:
The carrier ox 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 was charged with the following specifications:
"l. Your alleged
aarunbecvming
of a1i qznp7:oye of the
EJ&E Railway Compmr~y when you were arrested by the Lockport
Iblice Department on March 30 and
31, 1976.
2, Your alleged unauthorized absence from duty as a carman
with the EJ&E Railway Company beginning Thursdays April 1,
1976
and including date of this letter."(April
7,
1976
Form. 1
Page
3
Award No.
7842
Docket No.
7627
2-EJ&E-CM- "T9
This provision states:
"In case an employee is unavoidably kept from work he will
not be discriminated against. An employee detained from
work on account of sickness or fox any other good cause
shah notify his foreman within twenty-four hours. An
employee who violates this rule may be dismissed."
His Uncle's notification on April
7., 1976
that he was off sick did riot
cure this violation. (See, for example, Second Division Awards
4689 and
6606).
This offense, by itself, is sufficient to justify an unequivocal
dismissal penalty.
Correlatively, while we recognize that the record doesn't shave the
adjudicative disposition of the criminal charges we must., as a matter of
our appellate responsibility note our concern with the manner carrier
presented its case. We believe that additional eye-witnesses should have
been called to testify on the fact specifics that led to the arrests on
March 34 and
31, 1976.
But this observation does not impair the results
of the investigation, It is more an admonitory ebmnnent.
Accordingly,, having thus found that the investigation was procedurally
acceptable we will not interpose our judgement regarding the appropriate
penalty prescription, where the record shows that suff'icient probative
evidence was adduced to sustain the allegations. We will deny the claim.
AWARD
Claim denied,
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
o
arie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 14th day of February, 1979·
1
. ., ,. > a 'sa
:i W S~.,i ~ J
~ ~ J
ltj · LABOR
MEMBER'S DISSENT TO AWARD NO. 7842
DOCKET NO. 7627
·~
. ~ Q ·V . ~: ~
The Majority in this dispute committed serious error
in considering exhibits presented by the Carrier that were not
made a part of the record of handling. Such consideration is
in
direct violation of Circular No. 1 and this fact was made
well known to the Majority. Such acts cannot be tolerated.
The Majority condemns Carrier's actions time after
time, i.e., failing to reschedule hearing upon request, and
failure to produce eye-witnesses to testify, but the end result
is condoned, resulting
in
Claimant's dismissal in flagrant
disregard of rules of agreement and procedures of this Board.
C. E. Wheeler
Labor Member
°° - . »y
.. .