Foam 1 NATIONAT RAILROAD ADJUSTMENT BOARD Award No.
8311
SECOND DIVISION Docket No. 81,32
2 NBoW-MA-' 80
The Second Division cow isted of the regular meters and in
addition Referee Richard R. Kosher when award was rendered.
International. Association of Machinists
and Aerospace Workers
Parties to Dispute:
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the controlling
Agreement when it improperly assessed Machinist E. S. Giblin five
(5)
days actual suspension beginning
July 18, 1977,
and continuing through
and including July 22,
1977,
as a result of investigation held on
.7Une
9, 1977.
2. That accordingly the Norfolk and Western Railway Company be ordered to
make Machinist E. S. Giblin whole for any and all losses resulting from
the investigation described in No. 1 above and to clear his record of
all mention of the investigation.
Find
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 employee involved in this dispute
are respectively carrier and employe within the meaning of the Railway Tabor Act
as approved i'une 21,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Paz-ties to said dispute waived right of appearance at hearing thereon.
Claimant approached his foreman on May 20,
1977
and requested permission to
go home for medication for a toothache, Claimant indicated that the loud noise
and barring effect of the impact wrench that his fob required him to operate
would aggravate his condition. Permission was granted and the Claimant marked
off at
8:45 p.m.
At approxi.mate3,y 10:00 p.m. the Claimant was observed at a local bar with a
beverage in front of him. A hearing was held to "determine (the Claimant's)
responsibility in connection with (his) falsifying the reason for (his) being
absent from duty on May 20,
1977."
At the investigation the Claimant argued that he had, in fact, gone home
and taken his medication before going out to gas his car and then stopping at
the bar. The Carrier concluded, however., that the Claimant was in the bar and, as
a result, he was suspended from work for five days.
Form 1 Award No. 8311
Page 2 Docket No. 8132
2-N&W-MA-'80
The Carrier defends the discipline by ;pointing out that the Claimant said
he was "going home to get same medication." The Carrier submits that if an
employee is sick enough to leave his fob, he should go home or seek medical
care. The Carrier argues that the Claimant's first obligation was to the Carrier
and that the Claimant should have returned to work if he felt better after taking
the medication.
The Carrier notes that there was no probative evidence introduced to support
the Claimant's contention that he did go home. The Carrier argues that the
Claimant was at the tavern then it (the Carrier) "had every right to believe he
was home sick".
The Carrier does not take issue with the Claimant's having had a toothache,
and acknowledges that having to operate an impact wrench with a sore tooth could
be sufficient grounds to seek permission to go hoarse. The Carrier argues, however,
that the toothache only justified the Claimant's going hoarse, not to a tavern.
The Carrier notes that driving a car (and stopping for gas) is not the same as
going to a bar.
The Carrier additionally asserts that the trial was fair and that the
discipline was not excessive.
The Organization charges that the Carrier has not met its burden of proof.
While the Claimant was alleged to have "falsified his reason for being absent
from duty," the organization contends that the allegation is not supported by
evidence or testimony. Rule 33 of the Agreement, the Organization argues,
protects the Claimant from such "arbitrary discriminatory actions".
The Organization notes that the Claimant lived close enough to work and to
the bar to have gone home as he said he did. It is pointed out that the Carrier
did not prove that the Claimant did not have a toothache or that he did not go
home and apply the medication.
The Organization concludes that "this case seems to reduce itself to the
proposition that (the) Claimant falsified his reason for leaving murk because
he stopped at the ... tavern', The Organization queries whether driving a car
to a gas station is also falsification and, in arty event, argues that it is
possible to feel too ill to operate an impact wrench without being totally
incapacitated,
The Organization notes that on at least one other occasion the Claimant has
had a serious toothache requiring medication of the type prescribed and applied
in the instant case. The Claimant's clean record is also noted.
The Carrier is primarily concerned with the Claimant's having been in a
bar while on leave from work. The organization argues that that alone does not
constitute falsification.
At the outset, the Board notes that it is the Carrier that bears the burden
of proof in a discipline case, In light of this, we also note that the Claimant's
uarebutted testimony indicates that he did, in fact, go home and take medication.
Form 1
Page
3
Award No.
8311
Docket No, 872
2-N&W-MA-'80
The Carrier's observation that it was more clearly established that the Claimant
was in a bar does not disprove the Claimant's credible testimony that he went
home for the purpose stated,
The Claimant was specifically disciplined for "falsifying the reason for
(his) being absent from duty". The Carrier argues that the Claimant's being
seen in a local bar an hour and fifteen minutes after he was allowed to leave
work constitutes falsification.
However, it is not clear that the Claimant promised or was specifically
required to go hone and stay home. The Claimant said he would go hoarse and
take his medication; this he apparently did. The Carrier has not demonstrated
that the Claimant was required to stay at hone, or to see a doctor, or to report
back to work.
While the Carrier asserts that the Claimant has such obligations, it has not
made alit a prima facie case to support its assertions. On the other hand, the
Board. is persuaded by the record that the Claimant was too ill remain at work
although he was
not
totally incapacitated. If the Carrier does not want
employees
in
this condition to be in a bar during the hours that they have been
excused from work (and if the Carrier wants such employees to stay home), it
must point to some rule or ,policy supporting such prohibition.
In
this case there was no policy or specific rule requiring the Claimant to
return to work or not to frequent a local business establishment. Further, the
Carrier has not proven that there was an implied prohibition.
The Claimant did, apparently, go home for medication. The Carrier hags not
shown that the Claimant falsified his reasons for leaving work.
Accordingly., the Claimant should. be compensated for wages and benefits, less
outside earnings, lost as a result of his five-day suspension. Record of the
discipline should be removed from the Claimant's file.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
.W
A~e -.00
BY
sema,rie
Branch - Ad,mi~strative Assistant
Dated at Chicago, Illinois, this 16th day of April, 19$0.