Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8373
SECOND DIVISION Docket No. 9300
° 2-BN-EW-183
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Burlington Northern Railroad Company (SISF)
Dispute: Claim of Employes:
1. That in violation of the current Agreement Mr. Jacy Harris, Electrician,
Burlington Northern Inc., (former St. Louis-San Francisco Ry. Co.) was
unjustly suspended from Carrier service from March 29, 1980 and
continuing through April g, 1980.
2, That further in violation of the
Agreement, Carrier
denied Claimant a
fair and impartial investigation as provided for in governing rules and
stands procedurally defective.
3. That accordingly, the Burlington Northern Inc., be ordered to make the
aforementioned Jacy Harris whole by compensating him for all time lost
account this unjust
suspension, this
to include pay for attending the
investigation, February 29,
1980,
holiday pay for April
4,
1980 and
overtime pay for April g, 1980. Claim also to include restoration
of all seniority rights, vacation time, health and welfare benefits
pass privileges and all other rights, benefits or privileges that he
is entitled to under rules, agreements, custom or law and the record
of the unjust suspension be removed from the record.
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 Tabor 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.
This matter involves an absence on February 16, 1980, for which the Claimant
was found at fault by reason of not securing permission, thereby failing to
protect his assignment. A ten (10) day suspension was issued as a result of the:
investigation held on February 29, 1980.
Claimant is an electrician at the Carrier's Diesel Shop at Memphis, Tennessee
and was scheduled to work from 12:00 midnight to 8:00 a.m. Saturday, February 16,
1980. At about 11:00 p.m. on February 15, 1980, the Claimant telephoned Carrier's
foreman and reported he would not be in to protect his assignment scheduled to
Form 1 Award No. 9373
Page 2 Docket No. 9300
2-BN-EW-'83
begin at 12:00 midnight. Claimant talked to two mere foremen as per instruction:;
of each, and failed to receive permission from any of the foremen not to report
to work on the first day of his work week.
The Organization contends that the Claimant was not guilty of violating
Safety Rules D and F because "he seldom lays off", because "others do" and because
in accordance with Rule 22, "he did request to be off". In addition, the Organization
raises one procedural point in support of its arguments: that the multiplicity of:
roles of the hearing officer denied Claimant a fair and impartial investigation.
This contention is not meritorious in our judgment because it was first raised
before our Board but never properly jointed an the property. Numerous awards of
this Board have held that where claims or issues are so raised _de novo before
our Board, we are foreclosed from considering them.
Carrier contends that Claimant's admitted actions fully justified the ten-day
suspension and that the claim should be denied in its entirety. In the main, the:
Carrier argues that the Claimant stated, not requested, that he would not report
for duty during the instant occurrence and, when specifically told by his
supervisor that he could not lay off, Claimant chose to ignore the instructions and
lay off anyway. Further, the Carrier asserts that a sensible reading of the
record evidence supports the hearing officer's finding that the Claimant's lastminute excuse that his car broke down enroute to work sari false.
Analysis of the record fails to support the Organization's contentions.
Numerous awards of this Board have held that permission must be given to be
absent or to lay off work. (See Second Division Awards 8101, 8196, 8975, 9019,
90+1 and 9066). As stated by Referee McAllister in Award 9019, "Claimant is held
to understand that permission must be given before leaving a job assignment
despite his
statement he
was 'not a little child and I do not need permission to
be off from work"'. In the record before us, where just the opposite situation
occurred, i.e., Claimant was seeking permission to come to work in the first
place, rather than permission to leave, there is testimony that Claimant initially
just desired and requested time off and said nothing about car trouble problems
with transportation to work. When he was referred to the.general foreman,
Claimant's excuse became that his car was in the shop; untimately his excuse was
that his car broke down enroute. There is no credible evidence that Claimant
was ever given permission to be off, and clear and substantial evidence that
Claimant was specifically told that permission was not being granted and that
he should attempt to get a ride or take a taxi cab to work. At any rate, any
credibility determinations are for the hearing officer and not this Board.
See, e.g., Second Division Award 7325 (McBrearty). The notice thus was clear
and Claimant may not determine when and under what conditions he will report
to work. Moreover, the record evidence is unconvincing that other employes had
a right to take off from work without permission if their absence record was
good and they wanted the time off.
On the merits, the Board is satisfied that there was substantial and
substantive evidence of probative value to support the suspension and no foundation
in the record to sustain the claim.
Form 1
Page 3
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No. 9373
Docket No. 9300
2-BN-EW-183
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
s rie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 2nd day of February, 1983.