Form 1 NATIONAL RAILRQAD ADJUSTMENT BOARD Award No. 8428
SECOND DIVISION Docket No. 8142
2-SCL-SM-'80
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( Sheet Metal Workers' International Association
(
Parties to -Dispute-:
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes
J
1. Carrier did not present evidence to prove Sheet Metal Worker Metts
guilty as charged. Therefore, that the Carrier be ordered to pay
claimant eight
(8)
hours pay at pro rata rate for August 29,
30
and
31, 1977.
2. To allow August 29,
30
and
31, 1977,
as qualifying dine for vacation
purpose.
3.
Pay claimant eight
(8)
hours at applicable overtime rate for August 29
and
30, 1977,
to which he was eligible to work.
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 wt thin 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 was suspended for leaving his job without permission at about
11:00 A.M. on the day in question.
Claimant testified that he told his Foreman he was going to leave early
that day and "I told him I probably wouldn't be in the 'next day, that's why I
wanted to notify him because I could not reach him by phone". (Claimant did not
have a phone at the time of the incident.
Mr. Lewis, a machinist, testified he heard Claimant tell his foreman he was
going to leave early. He elaborated as follows:
Form l Award No. 8428
Page 2 Docket No. 8142
2-SCL-SM-180
"Q. ,., did (Foreman) reply and ask him how long or did
did he say anything that he was going to be there or
did (Foreman) even say anything to him?
A. I don't remember exact words that was said, it seemed
to me that he asked (Claimant) how long he was going to
be.
it
Mr. Lewis, in answer to a question from the Hearing Officer, stated that
Claimant asked him to tell the Foreman he had to leave.
Mr. Miller, a sheet metal worker, testified that Claimant asked him to
inform the Foremen "to mark him out, he was going home", but that he (Miller)
did not relay the message to the Foreman. When questioned as to whether the
Foreman asked him whether Claimant "was gone or had gone", Miller answered in
the affirmative and also that the Foreman then said he was going to mark Claimant
out. The Foreman testified he did not remember saying he was going to mark
Claimant out. The following colloquy between Claimant's representative and the
Foreman bears on this point:
"Q. Mr. Pollard, did you go to Mr. Miller and ask him if
(Claimant)
...
had already gone?
A. I believe I did when I couldn't find him.
Q. Well, then how did you know he was already gone .,.?
what
made you
think that
...
A. Not already gone, I asked him if he had gone."
Claimant testified that another employee, Mr. Moody, was present at the time
he asked Miller to inform the Foreman he was going home, and that he asked
either one to tell the Foreman. The record discloses that Mr. Moody clocked out
sick at about 10:30.
Carrier's position is that it was not the practice for employees to leave
their job without permission and that it was Claimant's responsibility to have
the Foreman's permission to take time off. Carrier adds that no witness testified.
hearing Claimant receive permission to be off.
Mr. Lewis testified that he had been asked in the past by other employees to
let the Foreman know that they were going to leave work early and that in such
cases, the Foreman marked the man off.
The Foreman's testimony corroborated by that of another supervisor, indicates
a practice by him to mark employees' time cards when they report off early and
do not punch their time card, or to correct the time card the next day when the
employee's actual departure time was ascertained.
Based on the record, we find that it was an accepted practice for foremen to
mark out employees' cards when leaving early, even when based on the statements
of fellow employees. Claimant's testimony that he told the Foreman he was going
Form 1
Page 3
Award No. 8428
Docket No. 8142
2-SCL-SM-'80
to leave early is confirmed by witnesses. The tenor of the Foreman's responses,
also supported by witnesses, strongly suggests that he did not deny Claimant
permission to leave early, so that Claimant could reasonably conclude that he
had permission. Accordingly, we shall sustain the claim.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
:
By
:~ia~
R semarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 6th day of August, 1980.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division