Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
SECOND DIVISION Docket No. 8717
2-WFE-CM-'82
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Western Fruit Express Company
Dispute: Claim of Employes:
(a) That under the controlling agreement, the Carrier improperly held
Carman, L. W. Isaak, out of service from January 23, 1978, through
January 27, 1978.
(b) That accordingly, the Carrier be ordered to compensate Carman L. W.
Isaak for all lost wages during the aforesaid time, plus any and all
other benefits due under the current 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.
The instant claim is almost identical both in fact and argumentation to that
which was presented in Award
9053.
The only apparent differences between the
two cases which can be discerned from the record is the degree and type of
"mutilation" which Claimant performed upon his hard hat; and also the addition
of Organization's argument that
"...
the supposed mutilation of the hard hat was
not an uncommon practice at this facility" and
"...
that the Carrier allowed
other employes to make changes to their hard hats similar to the decorating the
Claimant done (sic)"; and carrier's further contention
"...
that the plastic
construction of the hard hat would have a chemical reaction upon being painted".
Needless to say, these additional arguments and factual differences either
have not been substantiated or are of insufficient weight to warrant a departure
from the decision which was made by the Board in Award ;-C5J . Thus it is
concluded that though Claimant Isaak is found to have willfully mutilated his
Carrier-provided hard hat and though Carrier had the right to administer appropriate
disciplinary action thereto, under the circumstances, Carrier's five day disciplinary
suspension of Claimant without pay is deemed to have been "unreasonable and
excessive", and, therefore, improper.
Form 1
Page 2
Award No.
3
Docket No.
8717
2-WFE-CM-'82
A W A R D
The claim shall be sustained in part and denied in part and Claimant's five
day suspension without pay shall be modified instead to a three day suspension
without pay.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
BY _
semarie Brasch - Administrative Assistant
Daze at Chicago, Illinois, this 28th day of April,
1682.