Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8991
SECOND DIVISION Docket No.
8544
2-SISW-CM-'82
The Second Division consisted of the regular members and in
addition Referee George E. Larney when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( St. I.ouis Southwestern Railway Company
Dispute: Claim of Employes:
1. That the St. Louis Southwestern Railway Company violated the terms of
the controlling agreezient when the name of J. D. Henderson was removed
from the Seniority Roster of Carmen, Pine Bluff, Arkansas.
2. That the St. Louis Southwestern Railway Company be ordered to restore
Carman J. D. Henderson's name to the Seniority Roster of Carmen, Pine
Bluff, Arkansas, with all rights unimpaired, as required by Rule 24.-4
of the controlling agreement.
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, James D. Henderson, first entered the service of Carrier as a
Carman apprentice on date of July 10,
1968,
and established seniority as a
Carmen on February 20,
1974.
At the time of the subject incident, in and
around the months of October, November and December
of 1978,
Claimant was
assigned as a Freight Car Welder at Carrier's Pine Bluff, Arkansas facility.
Claimant's hours of service were 7:00 AM 'to 3:00 PM with Saturday and Sunday
as rest days.
On date of October 23,
1978,
Claimant laid off of work account sickness and
as of December
6, 1978
was still off account illness. It is deemed that this
layoff constituted a leave of absence, the record reflects that Carrier became
aware, by a written communique dated November 20,
1978,
that Claimant was
engaging in work for another employer during the time he was on said leave of
absence. This communique, from a Hattie B. M. Blaser, Secretary of the First
Federal Savings and Loan Association of Pine Bluff, and attested
to
by a Robert
Palmer reads in pertinent part as follows:
F:._.rrar. Award No. 8991
,age ,' Docket No.
8544
2-SLSW-CM-182
°`James Henderson is an hourly employee whose duties
consist of janitorial work done at night. He has been
working on and off since
1963.
He most recently started
back on 10/16/78. He has been a good worker with no
known physical limitations on amount of work or type of
work done. He works with his father, Mr. Elijah Henderson."
As a result of the above information, Plant Manager J. C. Renfrow at Pine
Bluff, acing on behalf of Carrier apprised the Claimant he had forfeited his
seniority and accordingly had been dismissed from service through removal of
his name from the seniority roster. This letter reads in whole as follows:
"Our records show you to have laid off account sickness
October 23,
1978,
and that you have not protected your
assignment as Freight Car Welder since that date.
We have information that commencing October 24,
1978
and
on various other dates subsequent thereto you engaged in
other employment during time you were off account alleged
sickness, specifically, in performing .-janitorial services
for a local savings and loan company.
Rule 14-3 of current Agreement provides that an employee off
due to sickness shall be considered on leave of absence.
Rule 14-4 provides that 'An employee on leave of absence who
engages in other employment will forfeit his seniority unless
special provision shall have been made therefor with the proper
official and Local Committee.'
Have no record of your having made arrangements to engage in
other employment and therefore, under provisions of Rules 14-3
and 14-4 you have forfeited your seniority and your name has been
removed from the seniority roster."
The record contains time cards from the First Federal Savings and Loan
Association of Pine Bluff, showing that Claimant performed work on an hourly
basis generally between the hours of x+:30 PM and
9:00
PM, in the five consecutive:
weeks beginning
10/16/78
and ending
11/13/78.
In this five
(5)
week period,
Claimant worked a total of
56
hours. Deleting the week of 10/16/78, for
which Claimant worked a total of
14
hours and which predated the period Claimant
was considered to be on leave of absence, Claimant then worked a total of 42
hours during the leave period. The record further reflects Claimant performed
janitorial services for the Savings and Loan, that such employment commenced in
1963,
predating his employment with Carrier by about
5
years and that such
work was performed on an irregular basis. In fact, there were years between
1963
and
1978,
in which Claimant performed no service for the Savings and Loan.
Evidence of record purports to show Claimant performed no service at all in the
years
1976
and
1977,
and that 'tie only performed two months of service in
1978,
earning total compensation in the amount of $201.41.
Form 1
Page
3
Award No.
8991
Docket No.
8544
2-SLSW-CM-182
The Organization assumes the central thesis that Claimant's janitorial
duties were performed intermittently and for short periods of time with very
little remuneration and as such, this kind of employment cannot be construed as
the type of employment contemplated in Rule 14-4 of the Controlling Agreement
bearing effective date of October 1,
1977.
In support of its position, the
Organization cites the dictionary definition of employment as set forth in
Webster's as,
"business, vocation, calling, office, service, trade, or
profession
-."
The Organization asserts that most of Claimant's work at the Savings and
Loan was only part-time and that he engaged in such work for the primary purpose
of assisting his father. Thus, contends the Organization, it is impossible to
view such work as constituting other employment.
In review of all the evidence of record we, are persuaded that the work
performed by Claimant at the Savings and Loar at Pine Bluff was indeed de
minimus in nature and in that context cannot ue viewed in a technical sense as
constituting other employment as envisaged by Rule 14-4 of theControlling
Agreement. However, we find Claimant's working at the Savings and Loan during
the period he was off work from Carrier's employ on account of illness to be
of great impropriety. If Claimant was too sick to perform his duties as a
Carman then certainly his working at the Savings and Loan must have had some
adverse impact on his recovery, no matter what type of duties he was performing,
thus delaying his return to work at Carrier's facility. We wish to make clear
to Claimant his judgment was misguided when he made the decision to work at the
Savings and Loan while off sick from his regular job. Notwithstanding our
strong feeling Claimant acted improperly, we have decided to reinstate Claimant
and to give him amethea chance to aontInue hc1s employment
with Carrier. Claimant is cautioned by this Board not to act in any manner which
in any way would jeopardize this new beginning.
A W A R D
The Board directs Carrier to reinstate Claimant with seniority unimpaired,
but without entitlement to any monetary benefits of any kind.
Claim sustained as per Findings.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 17th day of March,
1982.