Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8655
SECOND DIVISION Docket No.
8542
2-WT-cM-'81
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute:
( and Canada
(
( Washington Terminal Company
Dispute: Claim of Employes:
1. That the Washington Terminal Company violated rule 29 of the controlling
agreement when they unjustly dismissed car cleaner E. B. Ferguson as a
result of an investigation held on October 10, 1978.
2. That accordingly the Washington Terminal Company be ordered to restore
car cleaner E. B. Ferguson to the rolls with seniority and vacation
rights unimpaired and compensated for his net wage loss.
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, Mr. Ferguson, was employed as a carman by the Carrier. On October
3,
1978, he was notified to report for a hearing October 10, 1978. Claimant was
charged with excessive loss of time during the months of August and September,
1978. The investigation was held as scheduled and, following that session, Mr.
Ferguson was dismissed from service with the Carrier on October 11, 1978.
The Organization raises a procedural objection that Claimant did not receive
a fair hearing. Careful review of the transcript reveals that all parties were
present and allowed to present witnesses if they so desired. Further, all parties
were given the opportunity to advance their interests, cross examine witnesses,
and introduce evidence in support of their position. We find that the hearing was
conducted in accordance with past practice and statutory requirements.
Additionally, the Organization views the penalty as excessive and asks that
this Board so find.
The record reveals that during the period of time under consideration, Mr.
Ferguson was absent fifteen days during a thirty-one day working period. The
validity of the record was not challenged. The Organization pleads extenuating
Form 1 Award No.
8655
Page 2 Docket No.
8542
2-WT-CM-'81
circumstances, but the record does not substantiate such a position. When
questioned regarding the reasons for absence on the days in question, Claimant
responded that he didn't remember on some days, that he wasn't feeling too good
on others, that he was in a car accident on one day and had to see a lawyer on
one of the days. Such a varied response does not indicate any underlying problem
which would meet the criteria of extenuating circumstance. The amount of absence
from work during the period of time under consideration is clearly in excess of
that which could be countenanced by the Carrier. Claimant was guilty as charged,
In assessing penalty the Carrier relies on the past record of Claimant. That
record ind-'*_.ates that Mr. Ferguson had been suspended on three separate occasions
during the last eighteen months for the same offense. Each suspension was
increasingly severe in an attempt to correct the problem.
In view of the foregoing and the entire record we find that the Carrier was
within its legal rights to dismiss Claimant.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
r
By 1~·~
semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 4th day of March,
1981.