Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award. No. 8276
SECOND DIVISION Docket No. 8154
2-SPT-EW-'80
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( System Federation No. 114, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
Perry L. Johnson was unjustly treated when he was dismissed frame
service on September 29, 1977, following investigation for alleged
violation of Rule 801 of the General Rules and Regulations of the
Southern Pacific Transportation Company. Said alleged violation
occurring on August 31, 1977.
2. That accordingly, the Carrier be ordered to:
(a) Restore the aforesaid employe to service, with all. service and
seniority rights unimpaired, compensate him for all time lost
and with
payment of 6
percent interest added thereto.
(b) Pay employe's group medical insurance contributions, including
group medical disability, dental, dependents' hospital, surgical
and medical, and death benefit premiums for all time that the
aforesaid employe is held out of service.
(c) Reinstate allL vacation rights to the aforesaid employe.
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 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, Mr. Perry L. Johnson, was employed by the Carrier at its Diesel.
Terminal, Eugene, Oregon.
On September 8, 1977, he was advised by letter of a hearing on September 14,
1977, in connection with an allegation that he did not tell the truth to questions
put to him by a company officer at approximately
10:45
P.M. August 31 for which
Form 1 Award No. 8276
Page 2 Docket No. 8154
2-SPT-EW-180
occurrence he
was
charged with violation of Rule 801 of the General Rules and
Regulations of the Carrier.
Rule 841 reads in pertinent part:
"Employees will not be retained in the service who are ...
dishonest...
"Any act of ... misconduct ....is sufficient cause for
dismissal..."
The investigation was postponed at the request of the organization and held
on September 27, 1977. Following that hearing the penalty herein complained of
was
assessed on September 27,
1977.
The organization raises the defense that the record is tainted by the fact
that the company hearing official had same knowledge of the incident and was
biased. In the present case the transcript reveals that all parties were allowed
ample opportunity to present witnesses, cross-examine, make objections and state
positions in an equitable manner. This Board concludes that the hearing was fair
and appropriate. The record reveals that the Claimant signed off duty at
9:30
P.M.
for personal reasons. At the time of the incident, the Carrier was looking for
another employee who had been reported missing from his place of duty. The
company official testified that he noticed the claimant's van at 10:45 P.M. and
stopped it to inquire concerning the claimant's reason for being back on the
property. His response indicated that he had made plans to pick up some fellow
employees after work. Further testimony in the witness' words was as follows:
"I asked him who was in the van with him and he said no one
and I asked him to turn on the dome light. He said it did
not work. I asked him to turn on the auxiliary light and he
said he couldn't reach it and I told him I would walk around
to the passenger side to see if I could see in and when I did
so it became obvious that there
was
another employee in the
van.
Tf
The employee turned out to be the
individual they
were searching for. The
foregoing testimony was corroborated by another company witness who
was
present
during the discussion.
The claimant testified that his radio
was
,running and the van
was noisy so
he might not have understood all the questions. In his words:
"He asked me what I
was
doing and I made the statement
that I had to take a couple of guys home after work. Then
he asked me did anyone use your van? I said no and he asked
me did my interior light work or did my dome light work and
I said no. He asked me if I had a flashlight -- I said no.
That's about all there
was
to the conversation."
Form 1
Page
3
van.
Award No.
8276
Docket No.
8154
2-sPT-Ew-'8o
He further testified that he was not asked whether anyone else was in the;
The claimant's witness who was sitting on the so-called "funny seat" just; a
little behind the driver was somewhat evasive in his answers. He testified that
he only heard. =soave of -the conversation. That -he did not recall any question relative
to anyone else being in the van.
In view of the foregoing and the entire record this Board must conclude that
the weight of credible evidence supports the Carrier's position.
Rule
801
was violated and wane form of disciplinary action was appropriate.
The record reveals that claimant has now resigned from the service of the carrier.
It further contains evidence that claimant was offered return to work on a
leniency basis with no monetary remuneration for time lost. This Board concludes
that the refusal of payment for time lost does rnt constitute unjust discipline
for a breach of such an important rule. The claimant received all the cons ideration
to which he was entitled. His resignation was his own decision and not within the
purview of this Board.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
rie
AWer Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th slay of March, 1980.