C:\AWARDS\OUT\2-08033.htm

Form 1 NATIONAL RAILROAD ADJUSTtzEfT BOARD Award No. 8033
SECOND DIVISION Docket No. 7942 2-MP-FO-t79

The Second Division consisted of the regular members and in addition Referee George S. Roukis when award eras rendered.

System Federation No. 2, Railway Employer'

Department, A, F. of L, C. I. 0. Parties to Dist~ute: ( (Firemen & Oilers) ( Missouri Pacific Railroad Company Dispute: Claim of Fibnployes: 1. That under the current Agreement Laborer Anthony D. Hedges was unjustly dismissed from the service of the Missouri Pacific Railroad Corrpe,ny on August 1, 1977. 2, That accordingly, the Missouri Pacific Railroad Company compensate Laborer, Anthony D, T-odnes at the pro rata rate of pay for each work day begs nn:1 _ng Au.pust 1, 197 7 , until he is reinstated to service and in addition to receive all benefits accruing to any other employee in active se:c-,71ce, including vacation rights and seniority unimpaired, Claim is also made for Laborer, Anthony D. Hedges, for his w,^.tua'. loss of payment of insurance on his dependents and hospital benefits for h:i~,rself, and that he be made whole for pension benefits including Railroad Retirement and Unemployment Insurance, _ and in addition to the money claimed herein, the Carrier shall pay Mr. Hedges an additional sum of &/~, per annum compounded annuaa.ly on the anniversary date of said claim. Findings: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier o:r carriers and the employe or employer 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 was charged with violating General Notice Paragraphs 2, 4 and 5 and General Rule B of the Uniform Code of Operating Rules, when he absented himself frcan his assignment in the Palestine Yard, on July 22, 1977 between 4:05 A.M.' and 5:00 A.M. Form 1 Page 2 Award No. 8033 Docket No. 79+2 2-MP-FO-'79 An investigative hearing was held on July 27, 1977 wherein he was found guilty of the aforesaid specifications and dismissed frcen service. In reviewing this case the pivotal question before this Board is the assessment of penalty. We do not find, after a meticulous examination of the record, that the proceeding was improperly conducted or that the employe organization challenged the nature of the charges. In fact, ire find that the organization acknowledged the seriousness of the offense, On the other hand, we are constrained to conclude that the penalty under the particular circumstances of this incident was some4~rhat excessive. We recognize the fundamental observance, that an impel°miss:i_ble absence, espec-i_a_LLy in our industry :is a serious infraction. But we are also mindful of the need to insure that the punishrnent fits the transgression. Claimant, in this instance, was a short tenr em_nloyee. Ile had worked for the carrier approximately nine (9) months. Inasmuch a s carrier w-as entitled to :Factor this consideration into its d1.si;!iSSal determination, we believe that it vas unduly weighted, To be sure., claimant's absence was inexcusable. He was under a, more eompel7_a.ng obligation to notify his superior that he eras not feeling well. Sittinquietly in his automobile was not enough to rectify the situation. This Board has lord; held that it would not disturb carrier imposed disciplinary measures, where the investigative hearing comported with due process standards and the conclusion reached was judically reasonable. But we think in this case, the disposition was excessive. Accordingly, we will order claimant reinstated to his prior position but without back pay. His removal from service to date should serve as a sufficient warning and lesson that pertinent rules and regulations must be obeyed. A W A R D Claim sustained to the extent indicated in the Findings. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board c~-~o emarie Brasch - Admini.~trative Assistant Dated at Chicago, Illinois, this 8th day of August, 1979.