Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9081
SECOND DIVISION Docket No. 8728
2-C8c0-FO-' 82
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
I. That in violation of the current agreement, Laborer B. J. Dillard was
unjustly dismissed fry the service of the Carrier on February 8,
1979·
2,
That accordingly the Carrier be ordered to make the aforementioned B. J.
Dillard whole by restoring him to Carrier's service with seniority rights
unimpaired, vacation rights, and all other benefits that are a condition
of employment unimpaired. Also, that he be fully compensated for all
lost wages plus ten percent (10%) annual interest and reimbursed for
all losses because of loss of coverage under health and welfare and
life insurance agreements during the time he was held out of service.
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,
19311.
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 laborer with 18 months service at Carrier's Walbridge, Ohio
repair facility, was absent from his regular assignment without permission on
January 12,
1979·
At approximately
7:20
AM on the following day, January
13,
1979,
Claimant telephoned his Foreman, R. C. Cochran, and requested that a truck
be sent to get him because "... he was having car trouble". This conversation
was overheard by General Foreman R. Hutton who, at that point, picked up one of
the other phone extensions and instructed Claimant "... to get a taxi cab";
and he then asked Claimant why he did not show
up
for work on the previous day,
to which Claimant allegedly responded that he had "overslept".
As a result of the aforestated incident, Claimant was "... charged with
absenting yourself from duty without permission on January
12, 1979,
and in
violation of Rule
36"
and was directed to attend an investigation of the matter
on January
23, 1979.
Said investigation was conducted as scheduled, but
Claimant was not in attendance; and as a result thereof, Claimant was adjudged
guilty as charged and was dismissed from Carrier's service effective February
8,
1979.
Form 1 Award No.
9081
Page
2
Docket No.
8728
2-C&O-FO-'82
Organization's basic contention in this dispute is two-fold. First,
Organization argues that Carrier's actions herein are procedurally defective in
that: (1) Claimant's Notice of Investigation was improperly addressed and
Claimant, therefore, was not notified of the hearing which caused him not to
attend or not to request a postponement; and
(2)
General Foreman Hatton served
a multiplicity of roles in this matter -- investigating officer, charging
officer, hearing officer, and the officer who assessed the discipline -- which
was improper (Fourth Division Award No.
2194;
Secoxtd Division Awards No.
1157,
1158, 4317, 4536
and
7886),
and further that "(T )he bias of Mr. Hatton seriously
affects the fairness of the handling of this case..." Secondly, Organization
further argues that Carrier failed to sustain its burden of proof in proving that
Claimant was absent on January
12, 1979,
or that he did not call in and requested
and received permission to be off.
Carrier's position in this dispute, stated simply, is that the evidence which
was intxoduced at the investigation conclusively proves Claimant's guilt as
charged. Accordingly, Carrier argues that Foreman Cochran's testimony was not
"hearsay testimony" as Organization alleges, but instead was "... direct testimony
presented with regard to a conversation conducted over the telephone in which
Mr. Cochran participated".
Regarding Organization's procedural contentions concerning the various roles
which were served by General Foreman Hatton in this matter, Carrier contends that,
"... such handling is not inconsistent with the term 'fair and impartial' and ...
is not therefore in violation of the Agreement rules" (Second Division Awards No.
5364, 5855, 6057, 6229
and
8248).
Further along these same lines, Carrier also
argues that Organization made no objection to these procedural matters at the
time of the investigation and that such a failure prevents Organization from
raising such an objection at this time (Second Division Awards No.
3874
and
6188).
As its final series of arguments Carrier maintains that: (I) Claimant has a
"relatively brief period of employment with the Carrier" during which period he
"had accumulated an unusual number of disciplinary entries, the majority of which
involved unauthorized absences"; and
(2) "...
absence without permission is an
offense meriting discipline often as severe as dismissal" (Second Division
Awards No.
5182, 6057
and
6240).
The Board, upon a thorough and careful analysis of the complete record in
this matter, is of the opinion that Organization's procedural arguments as
presented hereinabove are unsupported and thus the resolution of this dispute
rests solely upon the merits of the case itself. Regarding organization's various
procedural arguments, suffice it to say that: (1) because of Organization Vocal
Chairman's failure to raise any objection to these procedural matters at the
hearing itself but instead clearly gave his endorsement of same, any such protest
by Organization at this point is untimely and improper; and, more importantly
(2) Organization's mere inference that Claimant did not receive the Investigation
Notice because it allegedly was addressed improperly, or that Claimant was denied
a fair and impartial investigation or a fair review of same because Mr. Hatton
served a multiplicity of roles in this matter, is insufficient proof that such
a result did, in fact, occur.
Form 1
Page
3
Award No.
9081
Docket No. 8728
2-C&O-FO-'82
Turning next to the merits portion of this dispute, the Board is compelled
to conclude that, aver and above the fact that the record itself contains a
paucity of evidence regarding several of the more critical aspects of this case,
there is a significant absence of substantial evidence which would be needed to
establish the propriety of the imposition of the discharge penalty as applied in
the instant case. The record, for the most part, merely shows that Claimant was
absent from work on January 12 and 13, 1979, as charged, but the record shows very
little else. For this reason, therefore, the Board is inclined to rule that
Claimant's, termination for such an infraction is entirely too severe a penalty
to impose under the circumstances and thus is deemed to be unreasonable and improper;
and the Board will direct a penalty which is more appropriate and commensurate with
Claimant's proven infraction.
A W A R D
The Claim is sustained in part and denied in part. Claimant will be returned
to service with all rights and benefits restored, but without back pay.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
`.L.
It&emarie Brasch - Administrative Assistant
Datedlat Chicago, Illinois, this 19th day of May, 1982