Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9011
SECOND DIVISION Docket No.
9154
2-SPr-EW-'82
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
R. E. Lewis was unjustly treated when he was removed from service on
June
15, 1979,
and subsequently suspended from service for a period
of fifteen
(15)
days on July 10,
1979,
following investigation for
alleged violation of portions of Rules 801 and 810 of the General
Rules and Regulations of the Southern Pacific Transportation Company
(Pacific Lines). Said alleged violation occurring on June
15, 1979.
2. That accordingly, the-Souther_n__Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Compensate Electrician R. E. Lewis for all time lost during the
fifteen-day suspension, as well as all time lost following June
15,
1979,
when he was removed from service prior to the formal suspension;
and the loss of wages to include interest at the rate of six percent
(6o)
per annum.
(b) Pay employe's group medical insurance contributions, including
group medical disability, dental, dependent's hospital, surgical and
medical and death benefit premiums, and railroad retirement contributions for all time that the aforesaid employe was held out of
service.
(c) Reinstate all vacation rights to the aforesaid employe.
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. R. E. Lewis is regularly employed as a mechanical department
electrician by the Southern Pacific Transportation Company at the Sacramento
Heavy Maintenance (Locomotive Works) Plant, Sacramento, California. On June 18s
Form I Award No. 9011
Page
2
Docket No.
9154
2-S PI! -EW-'
82
1979
Claimant was notified to appear at a formal hearing on June
27, 1979.
Carrier charge was that he had been in violation of Carrier General Rules and
Regulations
801
and
810
on June
15, 1979.
On July 10,
1979
Claimant was notified
of Carrier finding of guilt as a result of the formal hearing into this matter
and Claimant was assessed discipline of a fifteen (15) day suspension from
service. After Organization appeal before all appropriate Carrier officers on
property this case is now before the National Railroad Adjustment Board.
Rule
801
reads (in pertinent part): "Employes will not be
retained in the service
who
are ... insubordinate ...
quarrelsome..."
Rule 810 reads: "Employes must report for duty at the
prescribed time and place, remain at their post of
duty and devote themselves exclusively to their duties
during their tour of duty. They must not absent themselves from their employment without proper authority."
An analysis of the parties' submissions as they relate to this case, as
well as the accompanying exhibits, leave some question in the mind of the Board,
as a preliminary matter, of the exact length of the Claimant's suspension.
Claim of Employes is that Claimant be compensated for "all time lost during the
fifteen day suspension, as well as time lost following June
15, 1979
when he
was suspended from service prior to the formal suspension..." (emphasis added).
This suggests that the total suspension time of the Claimant exceeded fifteen
(I5)
days. This view is corroborated by the General Chairman of the union,
Mr. L. R. Longhofer, who states explicitly that employee lost "over
(30)
thirty
days" (Ibid.) and this view is compounded by the Labor Relations Officer of the
Carrier, Mr. L. C. Scherling,
who
appears to agree with this interpretation.
At the same time, Carrier's Submission to the Board, submitted by Mr. L. M.
Fox, Assistant Vice-President of Labor Relations, explicitly states that: "on
the basis of the evidence adduced at the formal hearing held with Claimant on
June
27, 1979
he was suspended from service of Carrier for a period of
15
working days. Carrier's Plant Manager included the period withheld from service
endin the hearing and allowed Claimant to return to service on July
9, 1979"
emphasis added). If the latter is the case, it would not have been possible
for the Claimant to have been off duty on suspension for thirty
(30)
days, as
suggested by Mr. Longhofer. The origin of the confusion can be found in the
notice to Claimant of the formal hearing results by Carrier Works Manager, Mr.
J. R. Allen
who
states simply, in his July 10,
1979
letter: "... you are hereby
suspended for a period of fifteen (15) days from the Southern Pacific Transportation
Company" without explicitly specifying, in the original notice, if (a) the days
assessed were actual or working days, or if (b) suspension time preceding hearing
was to be included therein. In either case this confusion, which does no service
to Claimant whose case is before the Board, will be operationally rectified by
the Board in the instant case. Claim will here be defined, therefore, to
include the suspension of all working days levied against the Claimant, subject
to Rule
39
of the Agreement between the parties, whether pending the hearing
or following the hearing, result of Claimant's alleged violation of Rules 801
and
810
on Carrier property.
Form 1
Page
3
Award No. 9011
Docket No.
9154
2-S PT-EW-' 82
The role of the Board in discipline cases is not to substitute its judgment
for that of Carriers but, in its appellate function it is only to determine if
the discipline levied is appropriate in view of substantial evidence. An analysis
of the hearing testimony shows conclusively that Claimant was in violation of
Carrier General Rule and Regulation 810 with specific reference to that provision
which states that employees must not absent themselves from their employment
(and in this case, work station) without proper authority. There is not
credible nor substantial evidence, however, to sufficiently convince the Board
that Claimant was in contravention of Rule 801. That provision of this rule,
as cited, which deals with insubordination was not developed at all at the hearing,
and evidence that Claimant was quarrelsome was lacking. Since the Board finds
that Claimant, therefore, is culpable only in part, as charged, it herein
exercises its prerogative, as it has done in the past, to reduce the penalty to
a measure it considers the circumstances warrant. Claimant's suspension shall
be reduced by five
(5)
working days with all privileges restored as stipulated
by Rule
39
of the Agreement between the parties. No interest on recouped
compensation since the Agreement makes no provision for this.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
' c
~Z~Z/
semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 7th day of April, 1982.