Form 1 NATIONAL RAILROAD ADJUSTi-ENT BOARD Award No.
8503
SECOND DIVISION Docket No.
8462
2-C&.NW-CM-' 80
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United
( States and Canada
Parties to Dispute:
(
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Carman Welder Billy Sigman was unjustly dismissed from service on July
26,
1978.
He was subsequently notified on October
27, 1978,
that the
discipline assessed him had been reduced to
90
days actual suspension.
2. Carman Welder Billy Sigman was erroneously charged with falsification
of his tLme slip and failure to properly perform his duties on
July
5, 1978.
3.
That the Chicago and North Western Transportation Company be ordered to
compensate Carnian Welder
Billy Sigman
for all tire lost in the amount
of eight
(8)
hours per day, five days per week at the Carman Welders'
rate of pay, and make him whole for all vacation rights, health and
welfare and insurance benefits, pension benefits including Railroad
Retirement Insurance and any other benefits which are a condition of
employment in accordance with Rule
35.
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 was dismissed from service on July
28, 1978
after an investigative
hearing on the following charge:
"Your responsibility in connection with your falsification
of your individual time slip for July
8, 1978
which indicates
you worke;l front 12 :00 a.m. to 8 :00 a.m., July
8,
for a total of
e
hours straight time and your responsibility in connection
with your .failure to properly perform your duties between
. 12:43 a. m. and 8:00 a.m. July
8, 1978
while employed as
Carman
..."
Form 1 Award No.
8,.5~03
Page 2 Docket No.
8462
2-C&Nw-CM-'
8o
Before examining the hearing record as to the propriety of the
disciplinzry
action, the Board takes note of what transpired during the processing of the
claim on the property.
As attested in a letter from the Organization's Local Chairman to the
Carrier's Assistant Vice President, the Carrier offer in a conference on October
5, 1978
to reduce the discipline from dismissal to a 60-day suspension without
back pay. (The offer came shortly after the expiration of the Claimant's first
60 days out of service.) This was confirmed in a letter from the Carrier's
Assistant Vice President dated October 18 in which it was stated, in part:
"...
the carrier agrees to put Mr. Sigman back to work,
pending a return to work physical, on a leniency basis
with all benefits entitled to him except no payment for
lost time
...
If Mr. Sigman feels he deserves further compensation,
arrange to process this portion according to the agreement
n
The record shows that this offer was declined by the Claimant. It is not
clear whether he understood that he could have returned to work and still
continued to press his claim for lost pay. In any event, a letter to the
Claimant from the Assistant Vice President dated October
27, 1978
then stated:
"The discipline assessed by the carrier has been reduced to
90
days actual suspension and you should report for duty
...
on Sunday October
29, 1978..."
There is no mention here of "leniency" but simply a reduction of the penalty.
The changed penalty came precisely 90 days after the Claimant had been removed
from service. He then returned to duty. It thus appears that the Claimant mast
bear at least a share of the responsibility -- if not all of it -- for his
being out of work from approximately October
5
until October
29.
As to the offenses with which the Claimant was charged, he was scheduled
to be on duty from 12 midnight to
8:00
a.m., July
8.
He was observed from
shortly after the start of his shift until 4:30 a.m. by two Carrier representatives
who
were specifically investigating whether or not the Claimant was performing
his duties, along with another Carmen, as assigned for the shift.
Based on the record of the investigative hearing, the Claimant either
arrived for work at
11:55
p.m. (his version.) or somewhat later (according to the
Carrier observers). There appears confinnation that he could not enter the
premises because his senior fellu~a Carmen had not arrived with the key; that the
Claimant had no key; and that the Claimant left the property to obtain a key
from another employee and returned. The record shows that lie was observed
thereafter for most of the time until 4:'~0 a.m. The Board has
no
basis on which
to dispute the findings of the Carrier that tile Claimant failed to perform his
assigned duties in
an
efficient and workmanlike manner during this period.
What he did between
4:30
a. m. and the end of the shift was not observed and thus
Form
Page
Award No.
8503
Docket
No.
8462
2-C&NW-Cm-' 80
cannot be part of a charge against him. Except for the period at the beginning
of the shift when the Claim-nt apparently went to obtain a key so he could start
his work, there is no evidence that he was not at his assigned location for that
portion of the shift.
In judging the severity of the penalty, the Carrier may properly consider
the employe's past record. Since this record shows two previous suspensions
for failure to perform duties properly, and based on the observations of the
supervisors in this instance, a relatively severe penalty is warranted. The
part of the charge as to "falsification" of the time slip is, however, overstated. Therefore, some modification of the penalty is in order.
A W
A R D
Claim sustained to the extent of reducing the disciplinary penalty from aC)
days to
75
days; the Claimant shall be made whole for regular time lost in the
final 15 days of his disciplinary suspension.
NATIONAL RAILROAD ADJUMIENT
BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By'*,r~.._ .,. _ _ _ _ . ..
Rosemarie Brasch - Administrative Assistant
Datedfat Chicago, Illinois, this 19th day of November,
1980.