Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8226
SECOND DIVISION Docket No.
8060
2-B&o-FO-
1
8o
The Second Division consisted of the regular members and in
addition Referee George E. Larney when award was rendered.
( System Federation
rTo.
4, Railway Employes'
Department, A. F. of L. C. I. 0.
Parties to Disrate: (Firemen & Oilers)
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
iL
1. That under the current agreement Laborer Milton Porter was unjustly
dismissed from the Baltimore & Ohio Railroad Company effective October
7, 1977.
2. That accordingly the Baltimore & Ohio Railroad Company be ordered to
reinstate this employee with seniority rights unimpaired, made whole for
all vacation rights, made whole for health and welfare
and insurance
benefits, pension benefits, including Railroad Retirement and Unemployment
Insurance, and made whole for all, other benefits including, wages that; he
would have earned daring the time he was held out of service; also tFIat
he be provided with 12, (percent) interest on all lost monies due to his
dismissal.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
a?1_
the evidence, finds that:
The carrier or carriers and the employe or employes involved in this disntite
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, Milton Porter, a Laborer employed at Carrier's Stock Yards facility
located at Cincinnati, Ohio, was dismissed from service of the Carrier effective
October
7, 1977,
following an investigation held on September 30,
1977,
in which
Claimant was charged with and adjudged guilty of: failure to protect his assignment;
excessive absenteeism; and voluntary unauthorized absence on Augv,st 5, 72, 19, 26,
and September 2 and
9, 1977.
Subsequent to his initial date of employment with the Carrier, that of Cctobzr
16, 1974,
Claimant became a member of a religious organization known as the World
Wide Church of God. w''zereas, prior to his becomina member of the 7rTorld Wide
Church of Cod, Claimant apparently had not specified to Carrier any lin:itwti.ons
with regard to working on ar4r of the days of the week, but that after he joined
the Church, Claimant let it be known that, for religious reasons, he could not anti
would not work on the Sabbath which is celebrated beginning sunset on Friday arid.
Form 1 _ Award No. 8226
Page
2
Docket No.
8060
2-B&O-FO-'80
ending sunset on Saturday. This interfered with Claimant fulfilling his obligation
of working a normal five
(5)
day work week as he was regularly assigned as a
Iiaborer on the third shift, 11:00 P.M. to 7:00 A.M.., Tuesday through Saturday
with rest days of Sunday and Monday. Claimant's personnel file revealed that on
June
8, 1976,
he received discipline of thirty (30) days actual suspension as a
result of being found guilty of voluntary unexplained absence; that on August `<?4,
1976,
he received another thirty (30) days actual suspension for the same offense;
and that on June 1,
1977,
Claimant received a five
(5)
day overhead suspension
along with a three
(3)
month probationary period for having caused damage to company
property. Claimant's unauthorized absences and excessive absenteeism, the subject
of scrutiny in the instant case, occurred during the time of this three
(3)
month
probationary period.
The record reflects that Carrier attempted to accomodate Claimant's religious
adherence to his Sabbath on at leas, three occasions in order for him to be able
to practice his religion and at the same time to keep his job. The first attempt
occurred in May of
1976,
when Carrier offered Clal-r-,ant an apprentice assignment,
first shift, with rest days on Saturday and Sunday. In a memorandum dated Play
17,
1976,
and addressed to the General Locomotive Foreman, Claimant declined accept-ance
of the apprentice position based upon "personal reasons" not specifically enu-erased,
The second attempt was made in early July of
1977,
when Carrier requested through
the Local Chairman that an employee of the firemen and oiler group voluntarily
exchange positions with the C,.aimant in order that he would no longer be required
to work on Friday evenings in violation of his religious beliefs. In letters :fated
July 15, and 21,
1977,
the Local Cormitteeman of the Organization apprised. the
Carrier's District T.11anager, Locomotive Department, that he had contacted all tile
Laborers on third shift with regard to changing rest days with the Claimant and
had contacted all Laborers on first and second shift with reg'ard to changing
positions and rest days -with the Claimant, but that every Laborer had refused
to do so. In a third and apparent final attempt the Carrier's District Manage^,
Locomotive Department, counselled with Claimant on August 4,
1977,
and informed
hip that his job was a five (5)-day-a-week assignment and that if he layed off for
any reason without permission he could be taken out of service. At this meeting,
Claimant was again offered an apprentice position on first shift with rest day:; of
Saturday and Sunday, which offer he again refused based on the reasoning that at
the end of four (4) years he would be back in the same position as he was then,.
The record further reflects that during the year
1977,
up to and including
September
9, 1977,
Claimant was absent a total of twenty-five (25) days, on rQ?w of
which he either requested or received permission to be off.
We have thoroughly reviewed the record and find, among other things, that
Claimant received a fair and impartial investigatory hearing. Neither the
multiplicity of roles performed by the Carrier official conducting the investigation
nor said Carrier official's pre-knowledge of the surrounding circumstances under
investigation were found by us to have, in any way, prejudiced Claimant's case,.
mhe
record before us is straightforward and clear with regard to the following
facts-
Claimant
.
, for quite some period 'of time prior to his dismissal from
service, refused, for religious reasons, to work his regular assignment
on Friday evening into Saturday morning.
Form 1 Award No.
8226
Page
3
Docket No.
8060
2-B&O-FO-'80
(2) It because apparent that no amount of discipline imposed upon the Claimant
would. cause him to work on his Sabbath thereby leaving his regular
assignment unprotected at these tima3._
(3)
That Claimant's assignment was left unprotected did, in fa6t, work a
hardship on the Carrier and even fellow employees with regard to covering
Claimant's assigned duties. Furthermore, Carrier would have been subjected
to payment of time and one-half (1?), to employees filling Claimant's
position had Claimant been permitted to be absent on each and every Friday.
(4) Carrier made several good faith attempts to~»o::t;;dstL Claimant's religious
beliefs but such e='ff'orts were either spurned by the Claimant or as happened
in one instance, Claimant's fellow union members refused to voluntarily
change assignments with him.
The Organization contended Carrier discriminated against Claimant by not
acct-datir;;; hiw religious beliefs in the interim period until Claimant could have
bid on a position with Friday as a rest day. However, the record reflects that such
an interim period of tire would not, in all probability, be of a tempora-y or short
length of time given Claimant's relative low rank in seniority. Under the aforestated circumstances, Carrier fell victim to a "Catch-22" bind. Carrier could not
circumvent the parties' agreed upon seniority system by giving Claimant preference
over other employees with regard to picking assignments which, under the Controlling
Agreement of May 1,
191,
as amended, he was not entitled to. Carrier however,
pursued the next best alternative by requesting the organization to effect a
voluntary exchange of assignments between the Claimant and a fellow union member so
as to avoid violating the Controlling Agreement and being subject to a charge of
showing favoritism.
A highly similar case composed of almost the same set of circumstances as that
before us in the instant case, was brought before the United utates Supreme Court in
Trans World Airlines, Inc. vs. Hardison,
432
U. S.
63 (1977).
In answer to the
argument advanced by petitioner in that case, that the statutory obligatl.on to
aeeovmodetc.hij religious needs imposed by Title VII of the Civil Rights Let of
:1964
took precedence over both the collective bargaining agreement and the seniority
rights of other employees thereby obligating the employer to order someone else to
work petitioner's assignment on the Sabbath, the Court stated in part:
"Collective bargaining aimed at affecting workable and enforceable
agreements between management and labor, lies at the core of our
national labor policy and seniority provisions are universall"T
included in these contracts. Without a clear and express indication
from Congress, we cannot agree with Hardison and the EEOC that an
agreed upon seniority system must give Yray when necessary to
accomodate religious observances."
The Court further declared:
"It would be anomalous to conclude that by reasonable accr=--datior.
Congress meant that an employer must deny the shift in job preference
of some employees, as well as deprive them of their contractual rights,
in
order to accoodate or prefer the religious needs of others, and we
conclude that Title VII does not require an employer to go that far."
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