Form 1 NATIONAL RAILROAD ADJUST11ENT BOARD Award No.
8552
SECOND DIVISION Docket No.
8517
2-WP-FO-'81
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 Michael C.
Dwyer was unjustly dismissed from the service of the Carrier on November
20,
1978,
following a hearing held on November 14,
1978.
2. That accordingly, the Carrier be ordered to make the aforementioned
Michael C. Dwyer, whole by restoring him to Carrier's service with
seniority rights unirzpaired, 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, agreeTwnts,
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;)
per annum compounded 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 ia-,aning
of
the Railway Tabor 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 at Stockton,
California, and had a senl.oritv d to of December 21,
1977.
On December
6, 1978,
the carrier instru:ted claimant to appear at a formal
investigation held November
14-
in connection with his alleged absence from duty
without proper authority from
may 4, 1978,
to November
7 , 1978.
In reviewing the transcript, it is the Board's conclusion that there exists
in the record substantial evidence to support the carrier's charge.
The claimant doesn't dispute that
he was
absent during the period in question.
He does contend that his absence was excusable in that he was physically disabled
during the entire period of his absence. In this regard, claimant indicates that
Form 1
Page 2
Award No. 8552
Docket No. 8517
2-WP-FO-'81
on May 4 he suffered a groin injury. He further testified that on approximately
May 11 his injury had healed to an extent that he was going to come back to work,
when he was injured in a car accident. He indicated that he notified the carrier
to this effect shortly after the accident. In support of his contention that he
was physically unable to report for work, claimant referred to a letter from
Dr. Willard B. Smith, Chiropractor. The letter was dated November
8, 1978,
and
it was read into the transcript record. The letter stated that claim nt was
under Dr. Smith's care from May 17 to October 23,
lq78,
and "was totally
incapacitated for the performance of duties during this time". The letter further
indicated the claimant could return to work October 27,
1978.
The hearing officer did not find Mr. Dwyer's defense of total physical
incapacitation credible. This conclusion is supported by substantial evidence in
the record. The carrier introduced a letter into the record from the Department
of Forestry (State of California) that verified that "Michael C. Dwyer worked for
the Department of Forestry as a Seasonal Fire Fighter from June 15,
1978,
through
October
18, 1978".-
The carrier argues convincingly that in light of the letter
from the State it is hard to believe that claimant was incapacitated. They also
point out a fire fighter's job is at least as rigorous as his position at the
railroad and if he was suitable for firefighting he was suitable to fulfill his
employment obligation to the railroad.
The claimant admitted he was enployed by the State as a fire fighter as
stated in the letter mentioned above. However, he had nothing of relevance to
say about the obvious contradiction between the letter from the State and Dr.
Smith's letter.
Regarding the degree
of
discipline, the Board does not find that in light
of
the seriousness of the offense and the brief period of claimant's employment
with the carrier that dismissal is arbitrary or capricious.
A W A R D
Claim deniedo
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTr1ENT BOARD
By Order of Second Division
C-~
I°~semarie Branch - Administrative Assistant
Dated at Chicago, Illinois, this 7th day of January,
1981.