Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9065
SECOND DIVISION Docket No.
9261
2-T&P-CM-'82
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
~ Texas and Pacific Railway Company
Dispute: Claim of Employes:
1. That the Texas and Pacific Railway Company violated the controlling
agreement, particularly Rules
15
and 24, when they arbitrarily assessed
Car Inspector J. W. Vance forty-five
(45)
days actual suspension
commencing 12:41 AM, March
17, 1980
until 12:01 AM, Thursday, May 1,
1980,
following investigation held on March 11,
1980.
2. That accordingly, the Texas and Pacific Railway Company be ordered to
compensate Car Inspector Vance in the amount of eight hours
(8`)
per
day, five
(5)
days per week beginning March
17, 1980,
until returned to
service at the end of the forty-five
(45)
day suspension, and that he
be compensated for all benefits the same as any other employe in active
service during the time of his suspension and that his personal record
be cleared of the charges.
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 was formally charged with failure to comply with verbal instructions
from his general car foreman and for failure to protect his job assignment. Rule
15 of the Agreement (Absent without Leave) clearly states that:
"An employee desiring to remain away from service must obtain
permission from his foreman to do so; but if sickness or other
unavoidable causes prevent him from reporting to his regular post
of duty, he shall notify the foreman promptly."
The record clearly indicates that the Claimant called his foreman at 2:00 P.M.,
approximately 1'h hours prior to the start of his shift. Claimant was calling to
advise that he was unable to come to work on account of his car breaking down.
The foreman instructed Claimant to take a taxi.
Form 1. Award No. ?CL5
Page 2 Docket No.
9261
2-T&P-CM-'82
This Board has consistently taken the position that it will not interfere
with the Carrier's discretion in matters of discipline, absent a clear showing
of arbitrary, capricious or unreasonable action, Referee Shapiro in Second
Division Award No.
6485
stated that:
"Excessive penalty is inconsistent with the purpose of
punishment which essentially is to accomplish correction,
not retribution. (This Board)
...
has reserved the right
to rectify the assessment of a penalty obviously excessive."
Claimant was assessed a
45
day suspension, which this Board finds excessive
given our findings that Claimant did call his foreman. We do, however, bow to
the Carrier's assessment that discipline was warranted, and instruct the Carrier
to reduce the
45
day suspension to 30 days. Claimant shall be compensated for the
15
days of excessive discipline at the same rate of pay when the discipline was
levied.
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
B_ _ GG
Y
emarie Brasch -Administrative Assistant
Dated at Chicago, Illinois, this 28th day of April, 1982.