Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8749
SECOND DIVISION Docket No. 8823
2-CR-FO-181
The Second Division consisted of the regular members and in
addition Referee David H. Brown when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer Frederick L. Moore
was unjustly dismissed from service of the Carrier following trial held on
March
6,
1979.
2. That, accordingly, the Carrier be ordered to make the aforementioned
Frederick L. Moore whole by restoring him to Carrier's service, with
seniority rights unimpaired, made whole for all vacation rights, holidays,
sick leave benefits, and all other benefits that are a condition of
employment unimpaired, and compensated for all lost time plus ten (M,;)
percent interest annually on all lost wages, also reimbursement for all
losses sustained account of coverage under health and welfare and life:
insurance agreements during the time he has been held out of service.
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 aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, Frederick L. Moore, entered the service of the Carrier on Januar_7
12,
1968. At the inception of the matter here in dispute, Claimant held a position as
Laborer at the Beech Grove Medium Repair Car Shop, Beech Grove, Indiana, with a tour
of duty 7:00 A.M. to 3:30 P.M., rest days Saturday and Sunday.
By a letter dated February 20, 1979, the Carrier notified the Claimant to attend
a trial on March
6,
1979 in order to answer charges in connection with the following:
"Failure to protect your assigned position on dates of November
3,
7, 8, 9, 10, 13, 15,
16,
20, 29 and 30; December 1,
4, 5,
6,
7,
8,
11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 26, 27, 28, and
29, 1978; January 2,
3, 4, 5, 8,
9, 10, 11, 12, 15, 16, 17, 18,
19, 22, 23, 24, 25, 26, 29, 30 and 31; February 1, 2, 5, 6, 7,
8,
9, 12, 13,
14, 15, 16
and 20, 1979."
Form 1 Award No.
8749
Page
2
Docket No.
8823
2-CR-FO-'81
The trial was held as scheduled with Claimant present thereat and represented.
Following the trial Carrier notified Claimant by Form
G-32,
Notice of Discipline,
dated March 111-,
1979,
that he was disciplined by "Dismissal in all capacities" for
the offense with which he had been charged.
It cannot be disputed that Claimant failed to fully protect his assigned
position on the dates indicated. Testimony adduced at the trial reflected the
following daily attendance record:
November
3 - sick
November
7 - present 5-1/2
hours
November
8 - 5
-1/2 hours
November
9 - sick
November 10 - sick
November
13 - leave
November
15 - 3
hours and
15
minutes
On the sixteenth,
3
hours and 15 minutes. On the twentieth,
present one hour. On the twenty-ninth and the thirtieth,
absence unauthorized or unknown. During the month of
December, absence unknown for the entire month of working
days. The month of January, absence unknown for all working
days. Absence unknown for the month of February also.
At the trial, Claimant produced a certificate from a physician stating that
_..
Claimant had been under the doctor's "professional care, and was totally incapacitate
from
11-17-78
to present". Nevertheless, Claimant made no effort before his extended"80
absence without authority to obtain a medical leave.
The trial was fairly and properly conducted, and discipline was surely warranted.
However, Mr. Moore had an unblemished record with Carrier for almost 11 years. It
would appear that his absence was contributed to, at least to some extent, by some
type of illness. Based upon the whole record, we believe that permanent separation
from Carrier's service is unreasonable. Accordingly, we order Claimant restored to
duty without pay for benefits or time lost and without loss of seniority.
A W A R D
Claim sustained in conformity with foregoing opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By ~ _
semarie B,,sbh - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of August,
1981.