Form 1 NATIONAL RAILRCAD ADJUSTMENT BOARD Award No. 8377
SECOND DIVISION Docket No. 8052
2-N&W-FO-'80
The Second Division consisted of the regular members and in
addition Referee Wesley A, Wildman when award was rendered.
( System Federation No, 16, Railway Employes'
( Department, A, F, of L. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers)
Norfolk and Western Railway Company
Dispute; Claim of Employes:
1. That under the current agreement Laborer F. N. Wilkerson was unjustly
assessed a fifteen (15) dAy actual suspension on July 25, 1977, As
a result of a previous investigation which was held on the same day at
which time Laborer Wilkerson was assessed a fifteen (15) day deferred
suspension, Laborer
Wilkerson's actual suspension from all service of
the railroad amounted to thirty days,
2, That Laborer F. N. Wilkerson was unjustly and unreasonably held out of
service pending investigation,
3. That accordingly the Carrier be ordered to reimburse this employe and
make him whole for all lost wages involved in this suspension including
vacation rights, Railroad Retirement benefits, sickness benefits, and
any other benefits he would have earned which were lost as a result
of F. N. Wilkerson's suspension.
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.
In an earlier case related to the instant matter, Carrier charged that on
July 21, 1977, F. N, Wilkerson, the Claimant here, failed to adequately perform
his assigned tasks in the washing area, resulting in a tree (3) hour work delay
on the property. On July 29, a hearing on this charge was held and Claimant
was found culpable. A fifteen (15) day deferred suspension disciplinary penalty
was assessed. This case was on appeal in Acrd No, 8130 the Board there
denying Claimant's request for dismissal of the fifteen (15) day deferred
suspension.
Simultaneously with being charged as described above, Claimant was notified
of a second hearing to be held on the same day as the hearing discussed above,
Form 1 Award No. 8377
Page 2 Docket No. 8052
2-N&W-FO-'80
to investigate a second charge that Claimant had not performed an assigned
chore on
July
22, 1g77, before reporting off sick for the remainder of his
shift, resulting in compensation to Claimant for work not done.
As a result of this second hearing on July 2g, 1977, Claimant was adjudged
by Carrier to have been guilty with respect to the second charge. Since Claimant,
as of the moment of the imposition of the first fifteen (15) day deferred suspension,
was considered by Carrier to be on probation, Carrier activated the deferred
suspension upon the subsequent finding of Claimant's guilt in the second incident.
The result: a total of thirty (30) days of actual suspension for the two
transgressions.
The purposes of a deferred suspension are, of course, 1), provision of
opportunity for remediation and, 2), deterrance. Obviously., with the deferred
suspension coming the same day as its "triggering" subsequent discipline,
there was no opportunity for the deferred suspension to work its intended
salutary affect. This observation, coupled with our judgment that Claimant's
transgression in the instant case was hardly more, under all of the circumstances
(sudden demotion from a job on which he had not performed adequately, etc.).,
than _de minimis, leads to the conclusion that a single fifteen (15) day
suspension period is adequate, sufficient, and just discipline for Claimant's
culpable behavior in both cases.
Thus, while we find ;hat substantial evidence does exist on the record
for a finding in this case of Claimant malfeasance, as charged by Carrier, we _
hereby order that the total disciplinary lay-off to be suffered by Claimant` for
both the transgression in this instance and the culpability found in Award No.
8130 be limited to a single fifteen (15) day actual suspension period, with
Claimant to be recompensed accordingly.
A W A
R D
Sustained in part and denied in part as per the findings.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
r
By
emarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 11th day of June, 1g80.