Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9310
SECOND DIVISION Docket No. 8966
2-NRPC-EW-182
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That the National Railroad Passenger Corporation (Amtrak) erred and
violated the contractual rights of Electrician Daniel Thomas, Jr. when
they assessed him fifteen (15) days deferred suspension as a result of
an investigation held on May 25, 1979.
2, That the investigation was neither fair nor impartial as required by
Rule 23 of the IBEW-Amtrak Agreement.
3. That, therefore the assessment of fifteen (15) days deferred suspension
be rescinded.
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, 193+.
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, an Electrician at Carrier's Eighth Street Coach Yards in Los
Angeles, California, was charged with "(V)iolation of Rule K ... in that you
failed to protect your entire assignment as an electrician at the Eighth Street
Yards, absenting yourself as follows: One (1) hour twenty (20) minutes on April
15, 1979; Four
(4)
hours on April 27, 1979; One (1) hour on April 29, 1979
Two (2) hours on May
4,
1979; and two (2) hours ten (10) minutes on May 6, 1979·"
According to Carrier, Rule K provides that:
'employees must report for duty at the designated time and
place, attend to their duties during the hours prescribed
and comply with instructions from their supervisor."
Pursuant to an investigation which was conducted on May 25, 1979 Claimant
was found guilty of only one (1) of the five (5) charged absences, that of May Ei,
1979, and, as a result, was assessed a fifteen (15) day deferred suspension.
Said suspension is the basis of the instant claim.
Form 1 Award No. 9310
Page 2 Docket No.
8966
2-NRPC-EW-182
In regard to the May
6, 1979
incident itself, the record shows that at
approximately noon on said date, Claimant, who was on duty at the time, received
a telephone call from his wife who allegedly informed him that one of the
neighborhood children had fallen into the swimming pool at Claimant's home and
had been injured ("almost drowned"). Claimant also alleges that, in the course
of this conversation, he detected that his wife was "(V)ery upset, nervous and
panicky
..."
and she requested that he return home in order to attend to the
matter. Thereupon Claimant went to his gang foreman, M. Bradfield, who informed
Claimant
"...
that he'd (Claimant) have to go see the general car foreman (V.
Dunn) and explain the situation to him before he could leave the company property."
According to Foreman Dunn, upon hearing Claimant's request, he (Dunn) did not
give Claimant permission to leave work, but Claimant had decided to leave anyway;
and, as Claimant was walking out of the office, Dunn allegedly stated to him, "I
see you're going to go. So with your record, I need a statement from the doctor,
stating that you're taking this boy under these conditions, before you come back
to work Monday." The record shows, however, that no such statement was presented
by Claimant upon his return to work; nor was one requested of him by Carrier.
Regarding this point, Claimant contends that when he arrived at home on the
preceding Friday, the neighbor boy, who had almost drowned, had recovered
sufficiently and there was no need to take him to the doctor's at that time.
Organization's position in this matter is two-fold. First, Organization
contends that Claimant's hearing was not conducted fairly and impartially as is
required because the Hearing Officer allowed evidence to be entered into the
record regarding Claimant's prior counselings for absenteeism. According to
Organization, such evidence, in addition to being irrelevant to the pending
charge,
"...
biased (the Hearing Officer) against the Claimant
..."
(First Division
Award 11130). Secondly, Organization also argues that the facts of record do not
establish that Claimant was guilty as charged since said record
"...
leaves no
alternative but to believe that Mr. Dunn implied to the Claimant that he had
permission to go home so long as he returned with a statement from the doctor."
Carrier's position, simply stated, is that no procedural error was committed
by the Hearing Officer in the conduct of the hearing itself because the disputed
testimony regarding Claimant's prior cotmselings was not used to establish
Claimant's guilt of the instant charge but merely
"...
to establish that he had
been put on notice before the date in question that his attendance habits were not
satisfactory"; and that such prior counselings were referred to by Foreman Damn
in his conversation with Claimant an May
6, 1979.
Regarding the merits portion
of this dispute, Carrier argues that there can be no doubt that Claimant left work
without permission because Supervisor Dune did not give him
"...
specific,
affirmative permission to go home
..."
and further that permission, in such
instances, cannot be inferred.
Upon a complete and careful analysis of the entire record which has been
presented in this matter, the Board is persuaded by Organization's contentions and
will so rule. In reaching this decision, the Board, by and large, has been
influenced by two (2) significant factors. First, though Supervisor Dunn may not
have specifically granted Claimant permission to leave work and go home on May
6,
1979,
neither did he specifically deny Claimant such permission. Mr. Dunn's
Form 1
Page
3
Award No. 9310
Docket No. 8966
2-NRPC-EW-182
very own testimony leaves no doubt that his statement to Claimant at the time was
not precise and was more of an acquiescence of Claimant's request than a denial
thereof.
Secondly, Claimant's contention that he believed that Supervisor Dune had
granted him permission to leave work early is supported by Foreman Bradfield's
testimony as follows:
'Q. (Mr. Egan): Mr. Bradfield, on the last occasion that we
were speaking of, May
6,
1979, did Mr. Thomas
ultimately receive permission to take himself
away from his job assignment?
A. (Mr. Bradfield): From the general foreman, yes."
The significance of the foregoing response cannot be denied since it clearly
indicates either that Claimant did in fact receive permission from Supervisor Dunn
to leave work early as he contends, or that the testimony of the two supervisors
is contradictory. In either event, such a determination supports the conclusion
that Carrier has failed in
sustaining its
burden of proof in this matter and
the Board so decides.
Having made the above determination, there is no need to address the
procedural issues) which the Organization has raised.
A W A R D
The claim is sustained and Claimant's fifteen (15) days suspension will be
rescinded.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 29th day of September, 1982.