Form 1 NAT-CONAL RAILROAD A1Ol1STMENT BOARD Award No.
. 8968
SECOND DIVISION Docket No.
8389
2-C&O-EW-'82
The Second Division consisted of the regular members and in
addition Referee John B. LsRocco when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That the Chesapeake and Ohio Railway Company unjustly dismissed
Electrical Gary 0. Glispie from service charging him with violation
of Rule 21 of the Shop Crafts Agreement.
2. That accordingly the Chesapeake and Ohio Railway Company be ordered to
restore Electrician Gary 0. Glispie to service with his seniority
unimpaired and compensate him for all time lost subsequent to
may 25,
1978,
and restore all other benefits he would have had if he had
remained in service.
Flndinj~s
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 were given due notice of hearing thereon.
Before the
commencement of
his regularly assigned shift at the Raceland Car
Shop on May P5,
1978,
Claimant, an Electrician, left the premises. The Claimant
asked a fellow worker to report him off duty but Claimant did not receive prior
permission for his absence. Instead of protecting his assignment on this date,
the Claimant worked for the Empire Steel Corporation.. After an investigation
held on June 1, 1978, the Carrier removed Claimant's name from the Electricians'
Seniority Roster for allegedly violating Rule 21 of the controlling agreement.
According to the Organization, the Claimant resorted to a recognized method
for reporting, off work on May
25, 1978,
and therefore, he was absent for a
single day which is not a leave of absence within the meaning of Rule 21(b).
The Organi::ation contends that even if Claimant failed to properly report off
duty, at most, he committed a violation of Rule 21(a). During the investigation,
Claimant's representative asserted that it was common practice for employes to
occasionally lay off their
assignments to work at other jobs. The Carrier has
acknowledged that, due to the demand for skilled craftsmen in the local labor
market, employes (including electrical workers) often engage in other employment.
Nonetheless, the Carrier argues that when the investigation disclosed that Claimant
Award No.
89'8
Docket No.
8389
2-C&O-EW-'
82
marked off duty ~olcly too engage in other employment, the Carrier bad to remove
Claimant's name from the roster under the self-executing provisions of Rule
`1(b). According to the Carrier, Rule 21(b) does not involve discipline but
treats the Claimant's decision to work for another employer as a voluntary
resignation from the employment of the Carrier with the consequential forfeiture
of seniority.
Subsection (a) and (b) of Rule 21(b) state:
"(a) Employes will not be permitted to lay off from work
without first securing permission. The arbitrary refusal
of a reasonable amount of leave to employes when they
can be spared, or failure to handle promptly cases of
sickness or business matters of serious importance to the
employes is an improper practice and may be handled as unjust
treatment under these rules and regulations.
(b) An employe absent on leave, who engages in other employment, will lose his seniority unless special provision has
been made therefor by the proper official and committee
representing his craft. An employe absent on leave, whose
place is filled by another employe, must give his foreman
notice sufficient in advance of the time tie will report
for work to enable the foreman to transfer the one filling
his place to his regular shift."
The issue presented to us is how Rule 21 should be applied to the peculiar
facts of this case. Under certain conditions, a single day of absence is
covered by Rule 21(b) regardless of whether the Claimant has properly marked off
duty. Second Division Award No.
7017
(Eischen). Thus, Rule 21(a) is not
material to this dispute. Several past decisions of the Second Division have
concluded that an employe who engages in outside employment without procuring
permission must suffer the mandatory loss of seniority provided by Rule 21(b).
Id.; Second Division Awards No.
7804
(Marx) and No.
8199
(Fitzgerald).
However, the facts of this controversy can be distinguished from those cases
because here the Carrier knew it was prevalent practice for employes to engage
in other employment. Under the extraordinary circumstances presented in this
case, the Carrier partially waived.the self-executing provisions of Rule 21(b).
Therefore, Claimant's name shall be restored to the Electricians' Seniority
Roster with his seniority unimpaired. Claimant's request for back pay and other
retroactive benefits is denied.
A W A R D
(;laim sustained to the extent consistent with otir 1? indi»gR.
Attest: Executive Secretary
National Railroad lA~ustment Board
Ey
semar a rasc i - n -sr-ratrve assistant
i ted at Chicago, Illinois, this 10th of March, 1982.
NATIONAL RAILROAD ADJUSTMENT B()Altl)
By Order of Second Division