Form 1 NATIONAL RAILROAD
ADJUSTMENT
BOARD Award
No.
8647
SECOND DIVISION
Docket No. 8452
2-CMStP&P-CM-'81
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
did improperly and unjustly terminate Carman G. D. Schwister from the
service of the Carrier on March
3, 1978
in violation of the controlling
Agreement.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to restore Carman Schwister to the service of the Chicago,
Milwaukee, St. Paul and Pacific Railroad Company with seniority
rights unimpaired.
3.
That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to compensate Mr. Schwister in the amount of eight hours pay
for every day from March
3, 1978
until he is restored to service.
That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to make Mr. Schwister whole for all benefits that are a conditiau
of employment such as, but not limited to, vacation rights, medical,
dental and group life insurance benefits for all time as Mr. Schwister
is held out of service.
5.
That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to pay Mr. Schwister interest at the
6%
rate per annum for any
monies he may receive as result 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.
On February
8, 1978,
claimant was notified to appear for a hearing on
February 22,
1978,
on the following charges:
Form 1 Award No.8647
Page 2 Docket No. 8452
2-CMStP&P-CM-'81
"1. Failure to protect your assignment on January 8 and
January 21, during your regular scheduled working
hours.
2. Failure to notify your foreman as early as possible
that you would be detained from work on January 8 and
January 21, in violation of Rule 23 of the schedule
agreement.
3. Partaking in an unauthorized leave of absence on
January
8
and January 21,
1978."
The hearing was held as scheduled and a copy of the transcript has been made
a part of the record. Claimant was dismissed from service at the close of his
shift, 3:00 P.M., March 3,
1978.
It is so well settled as to require no citation that in discipline cases
the burden of proof is on the Carrier.
Rule 23 of the schedule agreement provides:
"An employe detained from work on account of sickness or
for any other good cause, shall notify his foreman as
early as possible."
In the investigation, the claimant stated that he attempted to call his
foreman to notify him that he would be detained from work on January 8 and
January 21, 1978, but no one answered the telephone. The claimant stated that he
attempted to call repeatedly, but was unable to complete the call, and that in
each instance he notified the foreman upon reporting for work as to why he had
missed work on the previous day.
It was established in the investigation that the foreman, who is the proper
officer to receive such calls, was frequently out of his office for extended
periods of time, and when he was out of the office no one was available to answer
the telephone. It was also established that there was no direct telephone line
to the foreman's office.
In disciplinary cases all parties, including the Board are restricted to the
evidence adduced at the investigation in determining whether the charge or charges
against the employe are supported. Based upon our careful study of the transcript
of the investigation, or hearing, in this dispute, we are forced to the conclusion
that the Carrier did not meet its required burden of proof.
As to the remedy, it appears that claimant's prior attendance record was not
good. Therefore, we do not feel justified in awarding him compensation for each
day out of service. We will award that his compensation be computed on the basis
of his average work record for the two year period prior to his removal from
the service excluding such times that he may have been on disciplinary suspension
and from such amount the Carrier shall be permitted to make deductions as authorized
in Rule 34(h) of the Agreement.
Form 1 Award No. 8647
Page
3
Docket No.
8452
2-CMtP&P-CM-'81
The Organization has submitted no agreement support for Parts (4) and
(5)
of the claim, and they are dismissed.
A W A R D
Claim sustained to the.extent indicated in Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
o emarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 4th day of March,
1981.