Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9021
SECOND DIVISION Docket No.
9000
2-C&O-EW-'82
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister 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 violated the current
Agreement when they unjustly dismissed Electrician Charles A. Evans
from service on April 26,
1979.
2. That accordingly, the Chesapeake and Ohio Railway Company be ordered to
restore Electrician Charles A. Evans to service with seniority unimpaired
and compensate him for all time lost and benefits subsequent to and
including April 26,
1979,
and restore all other benefits and rights
he would have had if he had remained in 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 Claimant was dismissed on April 26,
1979,
for insubordination, falsely
claiming an illness, and absenting himself from his assignment without permission
on March
15, 1979.
The Organization asserts the dismissal was unjust.
Claimant reported to work on March
15, 1979,
at 11:00 P.M. Shortly thereafter,
he was advised by his Supervisor that his job assignment was being blanked, and
it was necessary for him to perform other duties. After a brief discussion with
his Supervisor, the Claimant marked his daily service card, "sick", and left the
property. The Claimant's testimony is. that he told the Supervisor he was sick
and unable to perform a strenuous job. The Supervisor understood the Claimant to
say he did not feel like working any job other than his own. Claimant admitted
he did not ask permission to be excused from work because of sickness.
On March
17, 1979,
Claimant was treated by David H. Procter, M.D., in his
office. Thereafter, he was admitted to the hospital. The diagnosis was stress
gastritis and hiatul hernia. The record establishes that, while Claimant did
not properly communicate with his Supervisor, he did say he was sick at the time
he marked his time card. Furthermore, a witness to Claimant's conversation
Form 1
Page 2
Award No. 9021
Docket No. 9000
2-C&O-EW-'82
with Supervisor Callihan presumed Claimant was sick although he said Claimant
"...
didn't put
it exactly that way in the words between". This witness also
corroborated the contention Claimant
did
not refuse to work. Rather, he
said
he
was "unable". Claimant was responsible for effectively communicating with
Supervisor Callihan. At the investigation, Claimant admittedly was unsure as
to whether, in that conversation with Supervisor Callihan, he had expressed
himself clearly.
The introduction of evidence the Claimant worked for at least one-half day
in outside employment the morning after he left work without permission is not
controlling when viewed in conjunction with the entire record. There is no
substantive evidence to support a charge of falsely claiming illness. On the
contrary, we conclude the record in conjunction with Claimant's hospitalization,
reasonably establishes Claimant was ill on March
15, 1979.
However, this same
record clearly shows Claimant did not properly advise his Supervisor he was too sick
to perform the assigned work. Thereafter, he did not secure permission to leave
the property. Under such circumstances, the Carrier properly determined that such
conduct necessitated discipline. This Board does not agree with the Carrier that
the evidence substantively proves its charges of insubordination and false
claim
of sickness. We, therefore, conclude the penalty of dismissaltn be excessive
discipline under these circumstances. The Claimant is to be reinstated with
all
seniority credits he held on April 26,
1979,
but without back pay. The Claimant
is on notice that he must comply with assignments. Secondly, should he
have reason to leave the property, he will request and secure permission.
A W A R D
Claim sustained in part, as per findings.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
~semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 14th day of April, 1982.