Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8519
,SECOND DIVISION Docket No. 8469
2-SLSF-FO-180
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( St. Louis-San Francisco Railway Company

Dispute: Claim of Employes:

1. That Laborer, H. N. Hopkins, was unjustly dismissed from the service of the St. Louis-San Francisco Railway Company on April 12, 1979, on charges of alleged violation of St. Louis-San Francisco Railway Company's Safety Rules and Instructions Governing Mechanical Department Employes, Form MP-1 Standard effective March 1, 1957, Rule B, Rule 3 and Rule 40 reading as follows:

Rule B reading in part:

"Employes who are negligent ... will not be retained in the service."

"Employes who are ... insubordinate ... will not be retained in the service."

Rule 3, reading:

'!Employes who are careless of the safety of themselves or others will not be continued in the service."

Rule 40 reading:

"Avoid standing or walking under a load that is being hoisted by crane or other mechanical device."

2. That accordingly the St. Louis-San Francisco Railway Company compensate

Laborer, H. N. Hopkins, at the applicable pro rata rate of pay for

each day beginning April 12, 1979, until he is reinstated to service

and in addition to receive all benefits accruing to any other employe:s

in active service, including vacation rights and seniority unimpaired.

Claim is also made for Laborer, H. N. Hopkins, for his actual loss of:

payment of Insurance on his dependents and hospital benefits for

him and that he be made whole for pension benefits including Railroad

Retirement and Unemployment Insurance, and in addition to the money

claimed herein, the Carrier shall pay laborer, H. N. Hopkins, an

additional sum of 6% per annum compounded annually on the anniversary

date of said claim.

Findings

The Second Division of the Adjustment Board, upon the whole record and a17. the evidence, finds that:
Form 1 Award No. 8519
Page 2 Docket No. 8469
2-SILSF-FO-' 80

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.

Laborer H. N. Hopkins, the Claimant, was suspended from service on March 27, 1979 by his supervisor, based on the supervisor's judgment that Hopkins' had repeatedly failed to follow his direct orders that day in performing clean-up work and remaining in his assigned work area. Subsequently, the Claimant was subject to an investigative hearing on this charge and on charges of separate, earlier incidents on March 32 and March 26, 1979. Following the hearing, which was conducted in a fair and proper manner, the Claimant was notified of his dismissal, retroactive to the suspension for "violation, in part" of the rules as quoted, above, in the Claim.

This dispute is somewhat unusual in that the Carrier has brought charges against an employe for three separate incidents and has conducted a single hearing to investigate them. The difficulty arises not so much from the combined hearing but from the fact that the penalty of dismissal from service is attributed to the three incidents jointly. If it is the Carrier's view that the three incidents of misconduct combine together to warrant dismissal, then the employe has been denied the right to have each incident reviewed separately as to his responsibility and, if warranted, to have a determination of the degree of penalty. If it is the Carrier's position that any one of the incidents was sufficiently serious to warrant dismissal, then the Organization and the Claimant are entitled to have each one reviewed on this basis to determine if it is sufficiently serious.

In explanation of this overview, the Board notes the following as an example: Claimant was charged with an incident which occurred on March 12, 1979, involving his alleged responsibility in a freight car striking an overhead door. No action was taken by the Carrier on this until the Claimant had been suspended on March 27 for an unrelated incident and then a notice of an investigative hearing was sent on March 28. If there had been no incident on March 27, would the Claimant have been subject to investigation and possible disciplinary penalty for the March 12 incident? The Board has no way of determining this.

Review of the record shows solid bases for the charges made by the Carrier. On March 12, the Claimant was in a position to avoid the accident in which the freight car hit the overhead door, but failed to observe that the door was not sufficiently raised and failed to notify his fellow workers of this fact. The record seems clear that, on March 26, the Claimant was guilty of unworkmanlike behavior in assisting with the movement of heavy material by means of an overhead crane. Despite his explanation to the contrary, it is evident that his frivolous attitude and immature actions were perceived to endanger others in the vicinity as well as himself.
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As to the March 27 incident, there was no denial that the Claimant's supervisor had giver. him the identical order three times in the same day and that the Claimant had failed to perform the work assigned to him.

It is not possible for the Board to know what penalty, if any, the Carrier might have imposed if each of these incidents had been considered separately. Each might have warranted less than dismissal, and there seems no basis for patching the three together to make one dismissal. For this reason alone, the Board will find that penalty excessive and will convert the period since March 28, 1979, to an extended disciplinary penalty. The Claimant should fully understand, however, that this suspension -- together with his disciplinary record in relation to earlier incidents -- are all part of his ongoing record. Any further deviation from attentive and cooperative performance according to the established rules could easily justify his final termination from employment.

A W A R D

Claim sustained to the extent that the Claimant shall promptly be offered reinstatement to his former position with seniority unimpaired but without back: pay or other retroactive benefits.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

osemarie Brasch - Administrative Assistant

Date at Chicago, Illinois, this 3rd day of December, 1980.