Form l NATIONAL RAILROAD ADJUSTME1TT BOARD Award No. 8196
SECOND DJVISION Docket 3';o. 8122
2-BidI-FO-' 79

The Second Division consisted of the regular members and in addition Referee Richard R. Kasher when award was rendered.

( System Federation No. 7, Railway Employes'
( Department, A. r. of h. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers)

(

( Burlington Northern Inc.

Dispute: Claim of ~~nloyes:

1. Under the current controlling Agreement, Mr. Paul. R. Dees, Hostler Helper, Havre, i-rontana, was unfairly dealt with when the Burlington Northern Inc., placed an entry of censure on his personal record., eff eetiv a April 28, 19 78.

2. That, accor din rlj, the Burlington Northern, Inc. be ordered to remove the entry of censure f)~-am his personal record.

Findings:

The Second Division of the Adjustment Board, upon the whole record and all the evidence, f-I.nds that:

The carrier or carriers and the employe or e:2ployes 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 assigned as a hostler helper at the Carrier's Havre, Montana Diesel Shop. The incident 5-Thi ch E,ave rise to the instant claim occurred on i:'4 rch 31 , 1978 when the Cl ai?nant tele-ahoned the Carrier at 1:52 p.m. (one hour and eight minutes prior to the starting time of his assigmment) and asked permission to mark off that date for "personal reasons''.

The Clainant did not work his assignment on March 31, 1978. The Carrier issued. a notice of investi,~-tion dated Aril 1, 1978 j.n which the ~la:~·r:^r~t was charz,ed with '~i"ailure to prc';~--et your assigr=ent as Laborer, ansentin yourself without authority on :a~W ch 31, 1978".

The investigation eras conducted and the Carrier concluded that the Clair_i~tnt was .p;uilt,y of tae ci,,,?,r c` and di ciplined ~l ai;..~ant by the entry of censure on` the Clair:ant's record. The censure was for the ~ia.i~ant's "failure to fu? ~;~r comply with requirements of Rude C-65 of the Burlington

Northern Safety Rules".
Form 1 Award No. 8196
Page 2 Docket ~lo. 8122
2-RNI-1'p- ' 7a
Rule 665 provides:

"Fb2lployees must report for duty at the desingated tire and place. They must be alert, attentive and devote themselves exclusivelzr to the Company's service while on duty. They must not absent themselves from duty, exchan-a duties with or substitute others in their place without proper authority."

It is the position ox" the Oraniza._ -7.; ~ ~ the C<').rrIer erre-3s by

~l;..z that ~,

imposing discipline in this case. The 0rc;anization contends that the ClaLq,ant
infoi.ed the Carrier of his intnded absence more than an hour before the
start of his shift and requested the day off due to an emergency concerning
a flood at his f<~ther's fa=n. The Organization states that there is no
doubt that the Clwi:,_,-,:.at notif i~:d. tae ;~ oiler a utliority of his intended
absence and in vievr of Rule 15 (f ), which prot-.Ldes that "An empl o; a lanavoidabl y
detained from wo;eri ;:,ill not. be discriz:drlal;ed against", the Clwimant should
not have been disciplined.

The Carrier contends that the cla <m should be dismissed since the

requirczcents of the Raf- l~':ay Labor Act, r°gwrdi ng conference on the property,
were not followed. On nerits, the Carrier contends that it did not
act arbitrarily and ;.:.~ics.ous_;~ ;-~:zez~ ~.'c .-~:~_:::=;zd ;,.r2 ?~t?rt~r of ;.~-ns:~ie upon
the Clair-ant's S recol'd, J % i s ti1.: ~_ C~S:!~:LC!~l of c `G1'tE: ~`~1"l:':?.err ti_!a'l: U-a Cla ;.' :ant
absented h:trnze'!f fro- ~-ror:r~ without obtaa.nin proper~ecr~ission to do so
and ther E:1 or a the discipline 1:::~wose d, whic111i the Cad rier contends was mild,
was justified.

The record does not support a finding that the requirement regarding conferences with the LIghest designated officer of the Carrier, as specified in the RailT,r4Pr Labor Act, were not met. Therefore, ire turn to the merits of this claim.

There is no dispute that the Clai?:lant did not work his assigrment on the date in question. 1eit-}ler is there .1 Question of the Cla:LCarit's having contacted the Carrier cencernin his expected absence. The following excerpts from the investigative transcript are significant:

"Q. Wi11 you please state -,,That trap; tai red during your phone

convey sa.tion with 11,xr. Dees (Clam-'-ant) ?

A. About 1:52 p.m. Mr. Dees (Claimant), Hostler 1-elper asked me

for the day off. I asked him the reason and he answered

' Per sonal Reasons'. a3sthen told him that ;aerrdssion was

not granted. He r a.pl i ed, '~-rPa~t do you want r.i° to say?'

I again asked him the reason and 1ze replied again, '~r:.~of~al.'

Again I said to hi_m, tbemniss-ion is not granted for personal

reasons' bat that he would be ;kitten -4_n tae lay-off boor.

IIe then hur7, ulp r1g tht~ c onve I,-, at.-, on and I ent,-~red him,

T

in the lay-off boo"k as follows. 3--31-78. Paul Dees, lay-off by self for personal reasons, permission is not granted, 1:58 P.T.T., R. Girres (!~oreman).

Form 1 Award No. 8196
Page 3 Dochet -To. 8122
2-BITI-F 0-' 79

"Q. Mr. Girres (Forman), you refer to the lay-off book. Is the lay-off book the record that you keep at the Diesel Shop to keep track of all employes that call in for the purpose of laying-off in ate.. manner?

A. That is right.

Q.. And you stated to Mr. Does that he did not have permission to b e off?

A. That's right.

Q. Did i.Zr. Does later report to work at 3:00 P.M. on March 31,

1978?

A. Not to the best of my knowledge.

Q. Did Ili-. Does have authority from you to be off on March

31, 10178?

A. He did not."

The above is the essence of the Carrier's case.

The follow inn excerpt frown the transcript is the renditial by the Claimant regard:,,ng the above quoted conversation with his foreman:

"Q. Did. you report for duty at 3:00 P.M. on 2.:arch 31 at the Havre Diesel Shon?

A. No, I didn't.

Q. Did you have authority from any of your supexnrisors to absent yourself frcrn duty on the 3:00 P.M. to 11:00 P.M. shift on March 31, 1975':

A. I thought I did.

Q. You heard hi~, Girres (For emn.n) state earl~.er that he advised

you that yoU :T.:_.d not have -et~:a-lion to be off, t;~ice, in his

phone conversation. Dial you understand that this is

what Mx. Girres ;;ws trying to co:L=unicate t-o you, that you

did not have pei7nissiaSk to be off?

A. Well, he said that you can't us:: 'Personal' as an excuse to lay-of"f. But he said that he would put me in the boot.. So I figured that would ...

Form 1 Award No. 8196
Page 4 Docket No. 8122
2-BNI-FO-'79
"Q. Did you hear Mr. Girres tell you that you did not have permission
to be off, during the phone conversation?
A. Well, he said, 'I can't give you permission to lay-off using
personal reasons'.
Q. In other words, he did tell you he didn't give you permission
to be off?
A. No. He said he couldn't accept the personal as a reason."

The above testimony clearly establishes the fact that the Claimant sought to absent ha.r~:Celf from uor with penriission ioz, _personal reasons''. He did not receive the sought-after permi sswon. -fad iie told his foreman that there vas an emergency at his father's farm which required the movement of certain machinery to avoid the effect-3 a:-.~' a flood, -it is conceivable that he would have received the permission that he was seek:T- n_;. however, the record is clear that he i,;as told, en at least t,,ro separate occasions, that he did not h`ve ner^missi en. Altl7ounh, ClaLtlant states that he "th0uri`T" that he had permission", there is noti,.i ng in the record to support the Claimant's supposition. ~l1e 15(f) is not found to be applicable. That rule applies to an e::.~,~?,o;,re~ unavo~.ciwb'i~ r;~:;;-.5.ne.~a. w'xc.,~:.. worm. TJ~at ,mss not the
case for the ~lw - - ~ -u

s.:Lara.~He : ata-~iZ ~eY~ i.c~.i ~o :;e ~~ni~r~ `a ~r~;x`=:, the

t Ila, permission i-ras denied, and he absented h-_:self unilterlly. Ther V~fore,
it is fuind that the CIML_wnt i':aS properly c1?arged an,:" found guilt-,- and
that the discipline imposed was appropriate.

A W A R D

Claim denied.

N?ATIOHAL RAILROAD ADJUSTIENT BOARD

By Order of Second Division

Attest: Executive Secretary
National R 4ilrca,i Adjustment Bo and

J

By !r_=' -.-:°.'t~=.,.,--';.~';:,.p.,.~ .-,''~,~,.

s~,COqeY:;arie Brasch - A iiai':i.L~1;·'-".tive .~?sS

istant

Dated at-Chicago, Illinois, this 28th day of November, 1979.