Form I NATIONAL
RAIIROAD
ADJUSTMENT BOARD Award No. 9077
SECOND DIVISION Docket No. 8695
2-WP-FO-182
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute: (
( Western Pacific Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current agreement Fireman and Oiler B. E.
Fairbee, was unjustly dismissed from the service of the Carrier on
November 9, 1978, following a hearing held on October
31, 1978.
2. That accordingly, the Carrier be ordered to make the aforementioned
B. E. Fairbee, whole by restoring him to Carrier's service with
seniority rights unimpaired, plus restoration of all holiday, vacation,
health and welfare benefits, pass privileges and all other rights,
benefits and/or privileges that he is entitled to under rules, agreements,
customs or law and compensated for all lost wages. In addition to
money claimed herein, the Carrier shall pay the Claimant an additional
amount of 6% per annum compounded annually on the anniversary date of
this claim.
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, a Fuel Truck Attendant with service date of May 4,
1978,
at
Carrier's yard facilities at San Jose, California, was charged with
"...
alleged
unauthorized absence from your regular assignment October
23,
24, and 25,
1978."
Pursuant to an investigation which was held in absentia on October
31, 1978,
Claimant was adjudged guilty as charged and was dismissed from Carrier's service
effective November
9, 1978.
Said dismissal is the basis of the instant claim.
Organization's basic position in this dispute is that Carrier's dismissal
of Claimant was an unjust action since Claimant had good reason for his absence
in that he had to return home to Akron, Ohio because "his parents were ill".
Additionally, Organization further contends that Claimant personally informed the
Yardmaster of his intended actions who in turn relayed this information to
Claimant's Supervisor. Organization thus argues that, given the foregoing,
Claimant's three days absence was not unreasonable and that Carrier's subsequent
Form 1 Award No. 9077
Page 2 Docket No. 8695
2-WP-FO-182
dismissal of Claimant was much too severe a penalty to assess (Second Division
Awards 1157, 1189, 1191, 1215, 1513, and 4132).
Carrier's position, in the main, is that Claimant's termination was proper
because: (1) there is no dispute that Claimant was absent as charged; (2) said
absence was without proper authority; and (3) Claimant's continuing absence and
his failure to appear at his own investigation hearing clearly warrants the
conclusion that Claimant is not even serious about continuing his employment
relationship with Carrier. As support for the foregoing Carrier asserts that
Claimant did not have the right to merely inform the Yardmaster that he was
taking "time off"; and that by engaging in such action Claimant committed a
serious infraction which is more than adequate grounds for permanent dismissal
(Second Division Awards 3874, 6285, and 6465; Third Division Awards 14601, 16860
and 19791; and Fourth Division Award 2595). °
Carrier's final significant area of argumentation in this dispute is that
Claimant's belated written excuse does not support Claimant's original contention
as presented by Organization since Claimant had approximately from October
23rd to the 27th to contact his supervisor and request a leave of absence before
the investigation but he failed to do so; and that Claimant is not interested in
retaining his position with Carrier since Carrier, through the organization, offered
Claimant conditional reinstatement, provided Claimant's excuse could be substantiated,
but Organization could not even get Claimant to respond to its inquiries.
Upon a complete and careful review of the entire record which has been ·~r~''
presented in this matter, the Board is of the opinion that Claimants Organization's
position cannot be supported and thus the claim, as presented, must fall. The
aforestated conclusion, for the most part, is predicated upon the fact that
claimant's account of the incident is either inconsistent or is inaccurate in
several critical aspects.
In this regard, the record shows that Claimant's last day of work was
Friday, October 20, 1978, and that Claimant picked up his pay check on the night
of October 24, 1978, at the San Jose Yard Office. However, Claimant, in his
letter to Carrier, indicates that "I Boyd Fairbee on Sunday 10-20-78 was called
home for emergency reasons" and "I intended to call Monday (10-21-78) but was
tied up, and it slipped my mind with other matters going on."
Not only does the foregoing indicate that Claimant is apparently in error,
regarding certain of the details concerning his absence; but, mare importantly,
such a revelation clearly indicates that Claimant, by his own account, remained
in San Jose either five days (20th through 24th) or three days (Sunday through
Tuesday) during which period of time Claimant could have--should have contacted
Carrier, reported his anticipated absence, and requested leave. Such a failure
on Claimant's part is inexcusable and Claimant must now suffer the consequences
of his dereliction. Under these circumstances, the penalty of discharge is not
an unreasonable penalty to assess, and any determination regarding the extension
of leniency in such a situation must be initiated by Carrier and cannot properly
be directed by the Board.
Form 1
Page
3
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No.
9077
Docket No.
8695
2-WP-FO-'82
NATIONAL RAILROAD
ADJUSTMENT
BOARD
By Order of Second Division
By >Lc
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of May,
1982.