F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9
SECOND DIVISION Docket No.
9149
2-SCL-FO-'
82
The Second Division consisted of the regular members and in
addition Referee Edward L. Stnmtrup when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute: (
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
1. That under the current and controlling agreement, Laborer Landy
Tharpe, Jr., was unjustly suspended from service of the Seaboard
Coast Line Railroad Company on March
27, 1980
and subsequently
dismissed on April
17, 1980,
after a formal investigation was held
on March 27,
1980.
2. That accordingly Laborer Landy T~arpe, Jr., be restored to his
regular assignment at Uceta Shop, Tampa, Florida, compensated for
all lost time, vacation, health and welfare, hospital and life
insurance and dental insurance premiums be paid effective March 27,
1980,
(date of suspension) and the payment of
6°%
interest rate be
added thereto.
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. L. Tharpe, Jr. is employed as a laborer for the Seaboard Coast
Line Railroad Company at Uceta Shop, Tampa, Florida with seniority date of
November 22,
1974.
At the time of the instant claim Mr. Tharpe held a Wednesday
through Sunday assignment, from
7:30
A.M. to
3:30
P.M. Monday and Tuesday
were his rest days. On March 24,
1980
Claimant received notice to appear for
formal investigation on March
27, 1980
at Carrier's Tampa Division Office,
Tampa, Florida. The charge was that Claimant had left his assignment and duties
on March 21,
1980
without permission from proper authority in violation of
Rule 26 of the Seaboard Coast Line Company's Rules and Regulations of the
Mechanical Department, and that in partial contravention of Rule 12 of the same
Rules and Regulations he had been insubordinate to foremen D. M. Moriarty and
T. H. Dickson on that same date. After a formal investigation was held on
March
27, 1980
Claimant was dismissed on April
17, 1980.
After appealing the
decision of Carrier through all appropriate steps on property, instant case i:,
now before the Second Division of the National Railroad Adjustment Board.
Form 1 Award No.
90'8
Page 2 Docket No.
9149
2 -SCZ-FO-' 82
Rule 26
reads as follows:
"Employees must not absent themselves from their duty
without permission from the proper authority."
Rule 12
reads (in pertinent part) as follows:
"...
insubordination
... will
subject the offender to summary
dismissal."
The facts of the case, as per the transcript of the investigation and
accompanying exhibits, show the following: Claimant reported to work on time
on March 21,
1980;
he asked permission from Engine House Foreman H. M. Moriarty
to leave premises at approximately 11:15 A.M. and was told he could obtain this
permission only from General Foreman W. Z. McGowan; McGowan left'for lunch
between 11:30 and 11:45 A.M.; Claimant then approached Department Foreman T. H:.
Dickson between 12:25 and 12:30 P.M. for permission to leave premises and was
again told that this permission could only be granted by Mr. McGowan; McGowan
had not yet returned from lunch; Claimant left property at 12:31 P.M. to attend
religious services at 1:00 P.M. Extenuating circumstances related t o this case
also show that Carrier Bulletin of February 26,
1980,
which was posted, stated.
(in part) that:
"...
employees should not leave their jobs without permission
from their foreman
..."
(emphasis added) without stating that this permission
must be obtained from the general foreman which was an informal policy which
was in effect at the Uceta Shop for less than a week prior to this incident;
in addition, Claimant had received permission from another Engine House
Foreman in the past to leave the premises during his shift in order to attend
religious services.
There is no question in the mind of the Board that Claimant was in
de facto
violation of Rule 26 of Carrier's Rules and Regulations. At the same time the:
circumstances of the case indicate that Claimant had made a sincere effort to
comply de jure with this Rule by seeking permission to leave premises for a
personal reason for which he had been granted permission to leave in the past.
Furthermore, Claimant experienced certain potential logistical difficulties
in finding the correct person to grant him this permission because of the
time-frame of events and Claimant's personal requirement of having to be at
the place of worship at 1:00 P.M. This does not justify Claimant's own
solution of self-help, in this instance, but it does in the mind of the Board
entitle Claimant to an additional chance to prove his worth as an employee to
Carrier. The Claimant is to be reinstated to his former position as of the
date of this award without back pay but with his seniority rights unimpaired aLs
per Rule 28 of the Agreement between the parties.
A W A R D
Claim sustained to the extent indicated in the findings.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No.
90t+8
Docket No.
9149
2-SCL-FO-'82
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
By & ~zc-e_.x--~G-~t-~ef-~'
o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 21st day of April,
1982.