F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9418
SECOND DIVISION Docket No.
8965
2-x&rr-CM-'
83
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
Brotherhood Railway Cayman of the United States
and Canada
Parties to Dispute:
( Kentucky and Indiana Terminal Railroad Company
Dispute: Claim of Employes:
1. That Cayman M. W. Barr was dismissed from service in violation of the
current agreement on November 20,
1979,
and
2. Accordingly, the Kentucky and Indiana Railroad should be ordered to:
(a) Restore him to service with seniority and all employee rights
unimpaired.
(b) Compensate him for all time lost as a result of his dismissal
with interest at the rate of
6%
per annum on all money due him, and
(c) Pay premiums for his hospital, surgical, medical, group life
insurance and supplemental sickness benefits for the entire time
he is withheld from service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carridrs 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 Cayman with seniority date of August I,
1967
at carrier's
Switching and Terminal facility in Louisville, Kentucky, was terminated for failing
to protect his assignment on the night of November
14, 1979
from 11:00 p.m. to
7:00 a.m. According to the record, Claimant had reported off work on the two (2)
previous work days, November 12 and
13, 1979,
because his "leg was hurting". At
approximately 11:50 a.m., on November
14, 1979,
however, Claimant's Supervisor,
Master rJechanic D. L. Sparks, encountered Claimant away from the property and
inquired of Claimant if he would be at work later that evening. Claimant allegedly
responded "... that he would definitively (sic) be in that night to protect his
assignment". No such appearance, however, was made.
Form 1
Page 2
Award No. 9418
Docket No. 8965
2-x&rr-CM-' 83
Pursuant to an investigation which was held on November 20, 1979, Claimant
was adjudged guilty as charged and was terminated from Carrier's service effective
that same day.
Claimant's position in this dispute is that at approximately 10:30 p.m.
prior to his shift start on the evening of November
14,
1979, he telephoned the
supervisor's office and reported that he would not be at work that evening.
Claimant maintained that in this conversation he talked with Mr. Iiaesler, the
Roundhouse Foreman; although Claimant later testified that he could not "(V)erify
who (he) was speaking to ... (because he) ... didn't catch the voice". Claimant
further maintained that early on the following morning, November 15, 1979, his
wife telephoned Carrier and reported that she had forgotten to contact Carrier on
the previous evening to report that her husband would be absent. According to
Claimant, his wife "... contacted him (General Foreman G. Schaefer) as soon as
she came to it or it came to her, and she tried to explain that to him that she
would have called earlier but she did not know and was not aware that I (Claimant:)
had previously reported off ..."
Carrier asserts, however, that neither Claimant nor his wife contacted any
supervisor prior to shift start on the evening of November 14, 1979, and that at
approximately 7:10 a.m. on the following morning, November 15, 1979, Claimant's
wife telephoned Foreman Schaefer and reported that "... she forgot to report
(Claimant) off the night before ... and she wanted to report him off now (and)
that he was taking some kind of medicine that made him sick last night."
Without probing the details of this case further or offering a recapitulation
of the various arguments which have been presented by the parties in support of
their respective positions, suffice it to say that Claimant's numerous inconsistencies regarding several critical elements of his testimony assuredly brings
into question the credibility of Claimant's entire defense. There can be no
doubt that the foregoing determination, when viewed in combination with Claimant's
abominable attendance record (to say nothing of innumerable disciplinary actions
for previous attendance related violations and Claimant's two previous conditional
reinstatements "on a leniency basis"), is sufficient evidence upon which to uphold
Carrier's action herein. (First Division Awards 131+2, 14014 and 11+554; Second
57+5,
12)+92 ,
1 of
Division Award 73118; Third Division Awards 891, x+961, 503+, 5+01,
13+81, 16214, 18362 and 2053; and Award No. 30 of PLB 995 and Award No.
PLB 1867). Indeed, under the circumstances, to do otherwise would be an absolute
travesty which the Board will not consider -- not even for an instant:
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Ad~ustment Board,
NATIONAL RAIIR04 D ADJUSTMENT BOARD
By Order of Second Division
By
y~·wm -
,::;4
lo~emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of March, 1983.