Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
8759
SECOND DIVISION Docket No. 8487
2-SPT-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
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under current Agreement, Carman R. C. Branch, hereinafter referred
to as the Claimant, was unjustly deprived of his service rights and
compensation when he was improperly discharged from service under date
of August
3, 1978
after four (4) years of service with the Carrier.
2. That Carrier be ordered to:
(a) Restore the aforementioned Claimant to service with all service and
seniority rights unimpaired, and he be compensated for all time lost;
retroactive to July
6, 1978
the date he attempted to return to work and
was denied.
(b) Grant to the Claimant all vacation rights he would have enjoyed. had
he not been unjustly denied his return to duty.
(c) Assume and pay all premiums for hospital, surgical and medical
benefits for Claimant and dependents, including all costs for life
insurance.
(d) Pay into Railroad Retirement Fund the maximum amount that is required
to be paid for an active employe, for all time he is 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 over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Carrier states that on June 12,
1978,
claimant, employed as a carman at
Oakland, California, failed to report for duty. On June
15, 1978,
someone notified
the Carrier's supervisory personnel, that claimant was involved in a motorcycle
accident and requested to be laid off. Claimant reported on July 12,
1978,
and
informed his supervisor that he had been confined. in jail from June 12 to July 5,
1978.
Form 1 Award No.
8759
Page
2
Docket No. 8487
2-sPT-CM-'81
On July
19, 1978,
claimant was notified to appear for formal hearing on
Thursday, July
27, 1978:
"... to develop the facts and place responsibility, if any,
concerning your alleged absence from your employment without
proper authority since July
12, 1978
(later changed to
June
12, 1978).
You are charged with responsibility which may involve
violation of General Rule 810, that portion reading:
'Employes ... must not absent themselves from
their employment without proper authority...'
'Continued failure by employes to protect their
employment shall be sufficient cause for dismissal.'
of the General Rules and Regulations of the Transportation
Department, southern Pacific Transportation Company.
You are entitled to representation and witnesses in accordance
with agreement provisions. Any request for postponement must
be submitted in writing, including the reason therefor, to the
undersigned."
The investigation was conducted as scheduled, and on August
3, 1978,
claimant
was dismissed from service. A copy of the transcript of the hearing has been made
a part of the record. A review of the transcript shows that none of claimant's
substantive procedural rights was violated. Claimant was present throughout the:
investigation and was represented.
In the investigation evidence was adduced, including the claimant's statement
that the reason for claimant's absence from June
12
to at least July
5, 1978, was
his being incarcerated in jail, and that his wife fabricated the story about claimant
being involved in a motorcycle accident. Claimant also admitted being in violation
of Rule
810.
Numerous awards have been issued to the effect that being confined in jail
cannot be regarded as a justifiable reason for an employe not protecting his assignment.
Based on the entire record, there is no proper basis for this Board to interfere
with the discipline imposed by the Carrier.
A W A R D
Claim denied.
Form 1 Award No.
8759
Page
3
Docket No.
W7
2-SPr-CM-'
81
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
emarie Brasch - Administrative Assistant
vr
Dated at Chicago, Illinois, this 2nd day of September,
1981.