Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8517
SECOND DIVISION Docket No.
8454
2 WP-FO-'80
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Western Pacific Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current agreement Firemen and Oiler Gilbert IVI.
Madrid, was unjustly dismissed from the service of the Carrier on April
6, 1979,
following a hearing held on April 2,
1979.
2. That accordingly, the Carrier be ordered to make the aforementioned
Gilbert M. Madrid, whole by restoring him to Carrier's service with
seniority rights unimpaired, plus restoration of all holiday, vacation,
health and welfare benefits, pass privileges and all other rights,
benefits and/or privileges that he is entitled to under rules, agreements, custom or law and compensated for all lost wages. In addition
to money claimed herein, the Carrier shall pay the Claimant an
additional amount of
6%o
per annum compounded annually on the anniversary
date of this claim.
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.
At the time of dismissal, claimant was employed as a Laborer and had a
seniority date of March 12,
1977.
On March 27,
1979,
Mr. Madrid received a notice of formal investigation to
be held April 2,
1979
to determine facts and place responsibility if any for
claimant's alleged unauthorized absence from duty on March
26, 1979.
Based on
the evidence adduced at the hearing, carrier discharged the claimant.
The claimant contends he called in and reported off sick prior to his
7:00
a.m. starting time. However, the claimant could not identify the person to
whom he allegedly spoke. Nor could the claimant remember the exact time he
called, recalling only that it was "when the sun was coming
up ...
right when
it starts turning a little dark and light at the same time". On the other
hand, Car Foreman Walden testified he was on duty from 11:00 p.m. March
23
Form 1 Award No. 8517
Page 2 Docket No. 8454
2-WP-FO-'8o
to 7:00 a.m. March 26 and that he did not receive any phone calls from claimant
nor did any of the other employees on that shift. Two other foremen on the
7:00 a.m. to 3:00 p.m. shift on the 26th testified to the same effect. One of
them, Mr. McCaul, stated that it was customary to make a record of employees
reporting off and that there was no such record of Mr. Madrid calling in.
The testimony of the claimant and the foremen conflict significantly. It
is not the Board's ftalction to assess credibility or resolve conflicts. We
also recognize that carrier witnesses are not to be given more credibility per _se_.
The question to be answered in regard to the assessment of credibility and resolution of evidentiary conflicts is whether the hearing officer's judgments are
supported by substantial evidence. In carefully considering the record in its
entirety the Board concludes there is substantial evidence to support the
hearing officer's findings.
Regarding the quantum of discipline, the Board observed that in the carrier's
submission, they listed ten disciplinary notations on the claimant's past record.
The carrier argues that when taking this record into consideration permanent
dismissal is justified. However, in their Rebuttal Brief, the organization
points out that only two of those notations were a matter of record in the handling
of this case on the property. They pointed out further that the two notations
that were handled on the property (a 5-day suspension and a 15-day suspension)
were based on very different and unrelated offenses. These two notations they
point out were not handled until the final conference. The rest of the record,
which included three letters of admonishment for absenteeism in the eleven
months previous to the discharge, they argue, cannot be considered by the
Board.
The Board, in its review of the handling of this case on the property,
cannot find any evidence of a specific delineation or discussion of the claimant's
past record other than the two above mentioned suspensions. Occasionally, in
the handling on the property, there were general references to the existence of
a past record but there is no concrete evidence that the other notations (involving
admonishments and informal notes) on his past record as presented here were
discussed on the property; nor does the transcript contain any discussion of the
claimant's past record. It is so well established so as not to require citation
that all evidence presented to the Board must be positively shown to have been
handled on the property. If the carrier hopes to convince the Board that a
claimant's past record justifies permanent dismissal, then that past record should
clearly be made part of the record on the property. It is a simple task and not
an excessive burden.
Based on the past record that is properly before the Board and based on the
seriousness of the charge we find that permanent dismissal is excessive. A
progressive penalty such as a lengthy suspension would have been more appropriate.
As such, the Board directs the claimant to be reinstated with no back pay and
his time out to serve as a final, and hopefully effective, warning that company
rules, particularly attendance rules, are to be complied with if continued
employment is desired.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8517
Docket No.
8454
2-WP-FO-'80
A W A R D
The discipline is modified to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 3rd day of December,
1980.