Form 1 NATIONAL TAIZROAD ADJUSTr.ETIT BOARD Award No. 8199
SECOND DIVISICid Docket No. 7947
2-C&O-CSI-' 79

The Second Division consisted of the regular members and in addition Referee Robert E..Fitzgerald, Jr. when award was rendered.

( System Federation No. 4, Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

(

( Chesapeake and Ohio Railway Company

Dispute: Claim of Employes:

1. That Carman., F. M. Duttry's name was unjustly removed from the Carmen's seniority roster as result o= investigation held in the office of General Plant '.,%'anager, Raeeland Car Shops, 10:00 a.m., Friday, march 4, 1977 in violation of Rule 21 of the Shop Crafts Agreement and Employe protection Agreement, dated Novea~aPr 11, 1974-.

2. Accordingly, Duttry is entitled to be compensated eight (8) hours, each day, five (5) days each week at the caxmen's applicable straight time rate until his name is restored to the proper position on tire carmen's seniority roster, all days accredited towards quali `y:s.ng days for vacation purposes, insurance on hirself and family and all other benefits accruing to employes in 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 or employes involved in this dispnate 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 arer the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

This ease involves a 26 year employee of the Carrier who was transferred from the facilities at DuBois. Pennsylvania to the facilities at F~isse7l.., Kentucky. The Claimant worked for one week and requested time off for the purported reason of attempting to find a residence in that area. Inotead of looking for a residence, the Claimant returned. to his home in Fennsylvailia and began employment with another employer.

The Claimant contends that he was justified in leaving the Carrier facility in Russell, Kentucky because he was under financial hardship due to the Carrier's failure to pay a $300.00 allot-rance pro;rided for =r the Coordinat:.1_on Agreement. The Claimo.ant justifies his failure to appear at tile hearing on a
Form 1 Award No. 8199
Page 2 Docket No. 7947

2-Ca;o-CM- t 79

continuing financial hardship. Finally, the Claimant contends that the discipline of discharge was arbitrary and capricious under the circumstances.

The Carrier contends that this is not a matter of discipline, but rather a question of the Claimant's having terminated his own employment by accepting employment elsewhere. Further' the Carrier contends that the question of the obligation to pay the allowance is not properly, before the Board, because the interpretation of the Coordination Agreement must be issued by the method provided in the Agreement. Finally, the Carrier contends that it was not realistic to expect the payment of the allowance to the claimant on the date of his reporting, because it did not know until he appeared that he would accept the transfer.

This Board has decided in other cases that the violation of the provision of Rule 21(b) are mandatory and self-executing. Thus the Board said in Award 4912, involving the same parties at the same location as follows:

"However it is clear that provisions such as Rule 21(b) are mandatory and self-executing (Airards 111, 509 and 2394 without referees; also Awards 1583-, 3268 and 4088), and cannot be unilaterally waived by the Carrier, since the

prior permission mast be obtained frcm the organization as

well . as the Carrier. Therefore we cannot escape the fact

that by yiolat! r. -the T7u:1 ~'1.i::;r:.rt I ost his seniority.

The hearing c-~d not cn~aa tlnis loss: - t mere:,r established.

the fact that itt had occ=red, "nd T.caz ne rust therefore

be relieved fran his Position." :r,]zphasis added

The argument of the Claimant that he was under severe economic hardship seems unrealistic in light of the long tern employment with the Carrier. Further, no evidence was presented to justify the Claimant's contention.

The argument of the Carrier that the question of the obligation to pay the allowance is one beyond the scope of the hearing, is well taken. Therefcre, no opinion is rendered on that point.

The Claimant's having voluntarily accepted other employment has resulted. in his automatic termination from employment with the Carrier. On this basis, the claim will be denied.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUST= BOARD By Order of Second Division Attest: Executive Secretary

iopal Railroad Adjustment Board

By"~-~°- ·~'~'---~'e.~ r_;,,,?..~./L---__.

Rosema)~e Brasch - Administrative Assistant

Dated at Chicago, Illinois, this 5th day of December, 1979.