Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8581
SECOND DIVISION Docket No.
859`
2-RF&P-SM-'81
The Second Division consisted
of
the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
(
( Richmond, Fredericksburg and Potomac Railroad Company
Dispute: Claim
of
Employes:
1. That under the current agreement, Sheet Metal Worker Leon Sellers was
unjustly discharged from service on December
5, 1978.
2. That accordingly the Carrier be ordered to re-instate the aforementioned
employe to service with all rights un-impaired, including seniority,
vacation, health & Welfare benefits and life insurance.
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, a pipefitter, had accumulated eight years of service when the
carrier dismissed him on December
5, 1978
for his alleged failure to report for
his scheduled shift on October
29, 1978.
After proper notice, an investigation was
duly held on November
9, 1978.
At the hearing, the claimant frankly admitted that
he failed to report for his scheduled shift at 12:00 a.m. on October
29, 1978.
The organization contends the claimant called his foreman one half hour after
the beginning of his shift and, therefore, he should be penalized according to
Rule
47
of
the applicable agreement. However, the organization's primary argument
is, that in spite of the admitted offense, the carrier's discharge of the claimant
was arbitrary and excessive in view of the fact that he was found guilty of missing
only one shift. The carrier urges us to sustain the dismissal because claimant's
prior work record discloses evidence of four other absences in the previous seven
months. Applying progressive discipline, the carrier states that the claimant, who
had been suspended on three previous occasions, had been amply warned that each
absence would result in a more severe penalty.
There is no doubt that the carrier proved the charge. Since the claimant
failed to report on October
29, 1979,
the issue becomes whether or not his penalty
Form 1 Award No.
8581
Page 2 Docket No.
859'+
2-C&Nw-sM-'81
should be restricted in accord with Rule
47.
The relevant portion of Rule
47
is
"An employee who reports for duty less than fifteen
minutes late will be held off until fifteen minutes
after his regular starting time; it being understood
that employees reporting more than fifteen minutes
late will be held for an additional fifteen minutes.
The above to apply to employees who are only
occasionally late reporting for work. Employees who
make a practice of being frequently late, will not
receive the benefit of the above change, but will be
held off for the full thirty minutes."
In this case, the claimant did call in thirty minutes late saying he had overslept.
The record discloses that he did not report to work at all. Because claimant
was absrnt and not merely tardy, his conduct is governed by Rule 19 and not Rule
47.
To be excused under Rule 19, the claimant must have been
"...
unavoidably
kept from work...". Oversleeping is not a valid excuse. Thus, the carrier
may impose discipline beyond the limitation in Rule 47.
The remaining issue is whether the penalty of dismissal is arbitrary, excessive
or unduly harsh under the surrounding circumstances. After carefully examining
the record, we rule that the assessed penalty was not commensurate with the preen
offense.
The carrier may consider the claimant's prior work record in determining the
amount of discipline. Here, the claimant had a virtually unblemished record during
most of his eight years of service. Only recently had he been guilty of reporting
to work late. lie had, in fact, served three suspension in the seven months before
the instant infraction. The last time claimant failed to report for his assignment, he was suspended for eight working days. Even by applying the principle
of progressive discipline, discharge for the next offense was both excessive and
too harsh. We are usually reluctant to reverse the carrier's assessment of
discipline, but because of the mitigating circumstances present in this case,
claimant should be reinstated with seniority unimpaired but without back pay.
Claimant's request for retroactive vacation, health and welfare benefits, life
insurance and other relief is denied.
The claimant should not interpret our decision today as a ratification of
his conduct. On the contrary, we have found the claimant committed a serious
offense. To maintain the safe and efficient operation of a large railroad yard,
the carrier must rely on employes to zealously protect their assignments and to
timely report for each and every shift. Therefore, this Board will not look with
favor upon future violations by the claim-ant. We expect the claimant, upon his
return to work, to report for his scheduled shift each day unless he has an
unavoidable excuse or has received permission from the carrier to be absent.
Form 1
Pa ge
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8581
Docket No.
8594
2
-c&Nw-sm-' 81
A W A R D
Claim sustained but only to the extent consistent with our findings.
NATIONAL RAILROAD ADJUSTI`IENT BOARD
By Order of Second Division
,R6s marie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 14th day of January,
1981.