Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8376
SECOND DIVISION Docket No.
8034
2
WT-CM-'80
The Second Division consisted of the regular members and in
addition Referee Wesley A. Wildman when award was rendered,
( System Federation No. 106, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Cat-men)
(
( Washington Terminal Company
Dispute: Claim of Employer:
1. That under the current agreement, Car Repairman Secbrue Gambrel was
unjustly dealt with when he was suspended from the service of the
Company for seven calendar days from November
8, 1977
thru. November 14,
1977.
Which is in violation of rule
29
of the agreement.
2. That the Washington Termim l Co. be ordered to reimburse Mr. Gambrel.
for his net wage loss due to this unjust penalty and his record be
cleared of this charge,
Findings
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier ox carriers and the employe or employer involved in this dispute
axe 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.
Car Repairman Secbrue Gambrel, Claimant, was suspended by Carrier from
service for seven (7) calendar days as a result of allegedly violating General
Rules "E" and "N" of the Company. Rule E states "employees must devote themselves
exclusively to the Company's service while on duty". Rule N provides that,
"participating in any unauthorized or unnecessary activity while on Company
property is prohibited".
On October
4, 1977,
Claimant was duly notified by letter to appear at a .
hearing on October 11,
1977,
prepared to answer charges of violation of Company
General Rules E and N.
It seems that at approximately 10 p.m. on the night of September 29,
19T,T,
Claimant was observed watching television in the storeroom office in the J. C_
Smith Building, Coach Yard. At the October 11th hearing, Claimant's time card
was produced which indicated, in fact, that he was officially off duty at
10 p.m. on the night in question. At this point, Carrier asked for a recess
(to which Claimant agreed) so that Claimant's foreman, the signer of the time
card, could be called to give testimony.
Form 1 Award No. 8376
Page 2 Docket No. 803+
2-WT-CM-'80
With proper notice, the hearing was reconvened on October 20th. Assistant
Foreman Zouers, signer of the time card, testified that Claimant came to him at
about 10:25 p.m. and requested to mark-off at 10 p.m. houers further stated
that at 10:25 p.m., he was aware that Claimant had been seen watching television
shortly after 10 p.m. He denied arty conversation, prior to 10:25 P.M., concerning
Claimant's intentions to leave early that night.
Claimant testified that he told houers in the afternoon of September 29th
that he wanted to leave early that night. He stated that he finished work on his
last train shortly before 10 p, m. and that he went to the storeroom to get new
lamp batteries for his next days' work, before going to mark-off. When Claimant
went to the storeroom, he found the television on. He claims he did not turn
it on, and that he did not sit down and watch it. According to Claimant, it
was while he was getting supplies that he was observed standing in the doorway
facing the television.
Carrier testimony verified that Claimant was standing in the doorway of
the storeroom when he was observed by the Assistant to the Manager, H. Ti7lman.
Following the hearing, on October 31, 1977, Carrier sent Claimant a letter
stating that he was adjudged to be guilty as charged and that as a result was
being given a seven (7) day suspension from service.
During the appeal process, Carrier put forth an additional charge: that
the mark-off time of 10 p.m.,, requested at 10:25 P.M.., was an attempt on the part
of Claimant to "maneuver or scheme out of the situation", by showing a false
quitting time, once he had knowledge of having been observed watching television.
There does appear to be substantial evidence on the record to sustain the
finding that Claimant was indeed watching television on Company property before
check-out in violation of General Rule N.
However, whether Claimant tried to "maneuver or scheme out of the situation"
by documenting a false quitting time we do not knave, partly because this charge
was belatedly and inappropriately made by Carrier. Moreover, it should be noted
that Claimant is a thirty (30) year employee with an unblemished record for the
past fourteen
(l4)
years.
Thus, in the opinion of the Board, the discipline of a seven
(7)
calendar
suspension seems somewhat excessive; Carrier is hereby directed to reduce the
seven (7) day suspension to three and one-half
(32)
days and recompense Claimant
accordingly.
A WAR D
Claim sustained in part, and denied in part, as per findings.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8376
Docket No.
803+
2 WT-CM-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By c,~.i
0
emarie Brasch - Administrative Assistant
Dated at Chicago., Illinois, this 11th day of June, 19$0,