C:\AWARDS\OUT\2-07903.htm

Form 1 NATIONAL RAILROAD ADJUSTMEPIT BOARD Award No . 7903 SECOND DIVISION Docket No. 7591 2-C R-EW-'79

The Second Division consisted of the regular members and in addition Referee Rolf Valtin when award was rendered.

( System Federation No. 1, Railway Employes'

Department, A. F. of L. - C. 1. 0.

Parties to Dispute: ( (Electrical Workers)
(
( Consolidated Rail Corporation

Di s t 7ute : Claim of Employ*res

1. That under the current agreement, Electrician W. J. Davis was

unjustly dismissed from service of the Carrier effective October

1.9'76.

2. That, accordingly, the Carrier be ordered to restore him to serv:ic(>_

with all seniority rights un:iz:.paired, vacation rights, sick

leave benefits and all other benefits that are a condition of

eraplo5~::~errt;

unimpaired and co:.~.pensated .for all last wages, a,l.so

reirr.b~_r:°seznent for all 1 osses sustained account loss of caveraig'e

of health and welfare and life insurance agreements during the

tune held out of 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 ox employes involved in this dispute are respectively carr:i.er 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.

The claimant is a former Electrician at the Carrier's Juniata Loco;=wove Shops at Altoona,, Pennsylvania. He iva s hired in m7 d-173 and apparently compiled a record of wholly satisfactory service. He was discharged in riid~- 1976. In 1976, July 4 fell on Sunday and was celebrated on 'Monday. The record is clear that the olaima.nt was off on July 3, 4 and 5. It is not clear as to whether the overtime assignment about to be dealt with con-nenced on Fridays July 2 or on Tuesday, July 6. ',v~Yne,zevcr the coAa:rencuTcent date, the overtirne assign.z!ent came to an end with the cozrp let:i_on of the 3: 30 Po2M;'midni_;ht shift on Thursday, Tuly 8. Form 1 Award No. 7903
Page 2 Docket No. 7591
2-cR-EW- · 79

In the sense that the claimant neither worked in his regular job nor worked under his regular supervisors the overtime assigru~nent was of special character. In the period in questions the ceiling in the Boiler Shop eras being painted. Several painters were assigned to the job. The claimant t s function was to service them by operating an overhead crane with an attached scaffold.

At some stage during the course of the day shift on Fridays July

:it became known that the crane had developed a defect and would b e inoperable pending repal.r·s. The cl:.a.i?nant, still working as an Electrician at this point, was contacted and told that he -v;-,as not to report for the crane-overti:ve -work on T- Lay 9 and 10. He did as told, and the second-shift Painters on those two clays painted walls by virtue of the crane's nan availability. The Carrier's "Ex x''"a.rte Submission" gives the succeeding events as follows:

"Claimant turned in his time cards for July

9, 1976

and July 10, ly% re presenting eight

(B)

hours overtime for each day. 1:n doing ;;o he sighed the name T. Ca poruscio as the Forer:an approving the tire card.

As a result. of the above incident, Claimant was notified by letter dated July 13,

1976

to attend a trial on July

19, 1976

in connection with the following charges:

'1. Cheating and dishonest conduct in regard to office records.

2, Falsifying tome card for personal gain on

7-9-76

and

7-10-76.

Forging Foreman's mane on two overtime cards

7/9/76

and

7/10/76,'_

If this were all there were to the case, there could obviously be no question as to the propriety of the discharge. The case, however, is not the straight-forward and mnencuribercd. one depicted by the Carrier. The claimant cannot be exonerated -- i.e., it remains true that he committed a serious offence for wlr ich he deserves to be severely punished. But we think it would be wrong:f'u1. to convict the claimant as a plain cheater and forgerer and thus to let the discharge stand. We are converting the discharge to a long-te;czu suspension, directing the claimant's reinstatement without back pay but with restoration of his seniority rights. We read the record as -warranting a series of findings, the following three among them. Form 1 Award No. 7903
page 3 Docket No. 7591
2-CR-EW-179

First, while true that the claimant turned in the time card for Jtt1y 10 as alleged and while true that no good exp!anation exists for his ever having done so in the first place, the claitnawL called the Clerk on the morning of July 12 and told him that the time card had been filed in error and should be rescinded. The Clerk received the call before the tame card had been processed, tore it up, a.nd discarded it.

Second., the claimant had gone without meal allowance and without time off for Dr,teal throu~,hout the cx~a.ne-overtaane assi gnm.ent. As already

:iinclica~ed, there is a question in the record as to ~~rnezOer that a.ssign:nent was of a 3-day or 4-day duration. And there is addit-i.onwl_1y a au:st.:i.on as to z::=hether, on each of the days, the cl ai~riant was entitled to meal money and :neat t ~ine at 11:30 rye as well as at 6:30 P~. But it :is clear that nothing vrl_atever had been done for him zri.-i,h respect to the meal eni.::it1_enent:>. The o:r?a_usion was presm:~a;b1y the under°str~. c?ab1e result of the c1 a,in-atlt `s unusual status in regard to supe.wis:ion. But the o-ais .,r on must nonetheless be attributed to a la°-,ck of proper Yrana.C;eria.l coordina.tiot:. And w..r:,t we accept is that the claimant, -in v.nciui.rynm on hoz-r the oma. scion could be remedied, was told to put in a cla:frn for an extra day via a ti.Yne c:rd with the particular person's signature on it. The claimant's testimony on this score is of rneanin<;f1z1. detail and is Persuasive. Ile received bad arid wrongful advice; and. however difl:icult i t nay have been to locate the .particular person, the cla,itra.t2t should have. checked vr's.t,i~ him before plac~_,.n his signatUrve on the card. But we accept that the cla.j:nwnt acted in accordance with the advice and that he was seeking redress for the neglected meal entitlements.

Third, on the opposite side of the coin, we find that the claimant gave an affirmative answer to the question --- separately asked both by the Clerk T~rith whom the claimant had the telephone conversation and by the General foreman who brought the charges against the claimant -- as to wilether he (the Claimant) had worked on Jute 9. This part of the case is Clearly of substantial adversity to the claimant. lie should have come clean when expressly asked as to the authenticity of the 'c-rage cla,~_,n. And, as already shown, we are by no means declaring the cl<N:i_tnant free of all wrongdoing.

We grant that we have not come to our conclusion without hesitation. On balance, however, we believe that the claimant should not stand. branded as the charges brand hint and that the case is more soundly viewed as akin to the case recently decided in Third Divis:i.on Award Into. 22112,

In the light of oar conclusion, we deem it unnecessary to coz:,ment either

on the Organization's contention that the claimant did not receive a fair
and :i.mpa.rt:i_al hearing; or on its assertion that the Carr:i.er was improperly :influenced by an alleged threat by the cla:unant's father a.[;ainst the General Foreman v.2o leveled the charges against the claimant.
Form I. Award No. 7903
Page 4 Docket No. 751
2-CR-Dl-' 79

A W A R D

Claim sustained as and to the extent given in the Findings.

N.ATIOPTAL RAILROAD ADJUSTI~1F;1dT BOARD

By Order of Scond Division Attest: Executive Secretary TTational Railroad Adjustment Board _--- ...~ . _ w _` ~~z- -~_-.-~z .~_ By- ~~--;,? ~ -~.,,,_ .~ Jt c -.x_~ ,~ ~_ _o. .R~T aiie F:oasch .~ kLministrative Assistant vested at Chicago, Illinois, this 19th day of April, 1979.