F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9025
SECOND DIVISION Docket No.
9141
2-SPT-SM-182
The Second Division consisted of the regular members and in
addition Referee Edward L. Stnmtrup when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That Sheet Metal Worker C. G. Swain was arbitrarily and unjustly
dismissed on February 19, 1980 and withheld from service of the
Carrier until October 20, 1980;
2. That accordingly, the Carrier be ordered to:
A. Compensate claimant for all time lost between February 19, 1980
October 20, 1980 in addition to an amount of 121o per annum
compounded annually on anniversary date of claim;
B.. Make claimant whole for all vacation rights;
C. Reimburse"claimant and/or his dependents for medical expenses
:,incurred while employe was improperly held out of service;
D. P,ay to claimants estate whatever benefits,claimant has accrued
with. regards life insurance for
all
time claimant was improperly
held out of service;
E. Pay claimant for all contractual holidays;
F. Pay claimant for all contractual sick pay;
G. Pay claimant for all jury duty and all other contractual benefits.
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 Tabor 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.
At the time of the incident in question Mr. C. G. Swain, the Claimant, was
a sheet metal worker in the employ of the Southern Pacific Transportation Company
working the 3:30 P.M. to midnight shift at the Locomotive Heavy Maintenance
Plant, Sacramento, California. On January 7, 1980 Claimant received notice
Form 1 Award No. 9025
Page 2 Docket No.
9141
2-SFT-SM-'82
from Carrier to appear at formal hearing on January
21,
1980 for alleged
violation of Rule
810
of Carrier General Rules and Regulations on December
21,
1979.
As a result of this hearing Claimant was dismissed from service by
Carrier on February
19, 1980.
After appeals by Organization on property before
proper officers Carrier offered to reinstate Claimant without prejudice on
October 20,
1980(*)
on leniency basis without seniority unimpaired but without
compensation for time held out of service with knowledge that claim for full
back compensation, with interest, would be presented before the Second Division
of the National Railroad Adjustment Board.
Rule
810
reads (in pertinent part) as follows:
"Employees must report for duty at the prescribed time and
place ... they must not absent themselves from their
employment without proper authority."
The central and only issue in this case is whether Claimant was absent without
permission from his assignment on December 21,
1979
from approximately x+:00 P.M.
to 10:00 P.M. in contravention of Rule
810.
It is not the role of the Board, which serves an appellate function, to
resolve issues of credibility, nor to substitute its judgment for that of
Carriers in discipline cases unless the Board deems there is mitigating
circumstances to warrant this action. The Board's primary role, however, is
to determine if there is substantial evidence to sustain findings of guilt
(See second Division Awards
7912, 7955, 6948
et alma.). It is the position of
the Board that Carrier has met the test of substantial evidence in the instant,
case. The Claimant left property on December 21,
1979
for five and a half to
six hours (from approximately 4:00 P.M. to 10:00 P.M.). Other employees on
this shift also left early on that day, with permission, since it was the last,
work day before the holiday season. It is only in the case of Claimant,
however, that the question of appropriate permission from supervision to leave
premises arose. It was the responsibility of Claimant to have made absolutely
sure that supervision understood that he also intended to leave early on that
day and/or to be absent a major share of his shift on that day. That a number
of supervisors wasted production time looking for him around x+:00 P.M. and again
around 6:00 P.M. in response to his wife's telephone call(s) (when Claimant
claims he left property with permission around x.:30 P.M.) is clear indication
that Claimant had not sufficiently communicated his absence from property
with supervision. Supervision ultimately took the only appropriate measure it:
could in applying Rule 810. In view of Claimant's past record of absences
from his assignment during his eleven month tenure with Carrier prior to this
incident, which was introduced in hearing, the Board finds Carrier reinstatement
of Claimant under conditions noted above to be magnanimous. The Board will not
disturb nor alter these conditions.
There is a discrepancy between ex parte submission of Employee and Carrier
National Railroad Adjustment Board submission
(p.5)
on the exact date Claimant:
returned on Carrier leniency basis to duty. Organization date is October 20,
1980
and Carrier date is October 16, 1980.
Form 1
Page
3
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No.
9025
Docket No. 91+1
2-SPT-SM-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
~6s rie Brasch - Administrative Assistant
Dated
r
Chicago, Illinois, this 14th day of April,
1982.