Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9434
SECOND DIVISION Docket No.
8998
2-sPT-Ew-'83
The Second Division consisted of the regular members and in
addition Referee John Phillip Lien when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: ( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
S. M. Basinger was unjustly treated when he was suspended from service
for a period of thirty (30) days on January
31, 1979,
following investiga
tion for alleged violation of portions of Rule
810
of the General Rules
and Regulations of the Southern Pacific Transportation Company. Said
alleged violation occurring on January
9, 1979.
2. That accordingly, the Carrier be ordered to:
(a) Compensate the aforesaid employs for all time lost during the
thirty-day suspension and with payment of six percent interest added
thereto.
(b) Pay employe's group medical insurance contributions, including
group medical disability, dental, dependent's hospital, surgical
and medical, and death benefit premiums, and railroad retirement
contributions for all time that the aforesaid employs was held out of
service.
(c) Reinstate all vacation rights to the aforesaid employs.
Findings
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employs or employes involved in this dispute
are respectively carrier and employs 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 S. M. Bassinger began his employ as an electrician with the Carrier
on November 11,
197+.
Claimant was absent from work for personal reasons on January
8, 9
and 10,
1979.
He notified the Carrier that he would be absent from work, and he received
authorization for his absences, on January
8
and 10,
1979.
However, Claimant
failed to call in on January
9, 1979.
Further, he was tardy in arriving for work
on January 11 and 12,
1979·
w
F orm 1 Award No. 9434
Page 2 Docket No.
8998
2-sPr-Ew-'83
By written notice dated January 15,
1979,
Claimant was advised of the time
and place for a formal hearing in connection with his alleged failure to protect
his employment on January
9,
11 and 12,
1979,
which conduct might violate Rule
810 of the Carrier's General Rules and Regulations.
The referenced portions of Rule 810 read:
"They must not absent themselves from their employment
without proper authority...
Continued failure by employes to protect their employment
shall be sufficient cause for dismissal."
Following a formal hearing on January 25,
1979,
Claimant was advised in
writing that based on the evidence adduced at the hearing, his responsibility
in connection with his failure to properly protect his employment on January
g,
1979
had been established; his conduct constituted violation of the referenced
portions of Rule 810; and for such violation Claimant was suspended from duty
for a period of thirty days dating from January
31, 1979
through March I,
1979.
The disciplinary suspension was appealed through all necessary steps prior
to the instant claim coming before this Board. At all steps the remedy sought
was that set forth above.
The record transcript in this case indicates that Claimant admitted that he low
failed to call in and notify the Company of his absence on January
9, 1979,
and
that his failure to protect his employment on that date was for personal business
which he did. not care to relate. Additionally, Claimant's tardiness of 45
minutes on January 11,
1979
and of one hour on January 12,
1979
without notifica
tion to the Carrier was for personal business which he did not wish to explain.
However, the disciplinary suspension imposed on Claimant was for his failure to
properly protect his employment on January
9, 1979
only.
In his summary at the formal hearing, Claimant recognized that he had personal
problems of a continuing nature which had affected his work record over several
months, but he again indicated no desire to explain the nature of his personal
problem.
It is the position of the Employes that the Carrier has not established
cause for the unjust suspension from service depriving Claimant of twenty-two
work days. Further, it is asserted that Claimant was obviously absent for
personal and/or family problems of considerable gravity simply too painfully
private to be able to discuss at the formal hearing. Indeed, it is contended
by the Employes that Claimant was attem pting to protect his employment when he
absented himself on January
9, 1979.
It is the position of the Carrier that Claimant's defense of "personal
business" is totally insufficient for the Carrier to make any determination
concerning Claimant's absence. By withholding information at the formal hearing,
Claimant acted at his peril.
Form 1 Award No. 9434
Page
3
Docket No.
8998
2-SPT-EW-'83
The Carrier notes that it was necessary to counsel Claimant in relation
to his conformity with Rule
810
in May and December,
1978.
These efforts to
achieve self-discipline in Claimant and alert Claimant to the importance of
protecting his employment by regular attendance had not effected the intended
purpose. Consequently, a more serious form of discipline was necessary and
reasonable under the circumstances.
It is the opinion of this Boa;td that the Carrier has shown compassion for
claimant's "personal problems" in excusing Claimant an those days during the week
commencing January
8, 1879
when Claimant gave timely notification of his
inability to report for work. Understandably, the Carrier has "problems" of its
own whenever employes scheduled to perform certain functions are unable to meet
their work obligations, but reason dictates that some accommodation be made by
both parties when confronted with events preventing total fulfillment of one's
work obligations.
On January
g, 1979
Claimant not only failed in his duty to the Carrier to
perform his job functions, he also failed to give notification to the Carrier of
his inability to perform those functions. There was absolutely no showing of any
reason for the latter failure. "Personal problems" are seldom such as to prevent
giving one's employer notice of inability to report for work, and if such occurs
that employe has no reason whatsoever for not explaining fully the event preventing
the notification.
Further, this Board has indicated in earlier cases that employes must
appreciate the function of management in having to determine what discipline,
if any, shall be imposed upon an employe who fails to protect his employment, as
Claimant failed to do on January
9, 1979·
To permit management to properly
exercise discretion in such a situation, there is a clear duty on the employe to
provide the Carrier with such information as is reasonably necessary for management
to make a reasoned judgment in the matter. When, for whatever reason, an employe
refuses to explain the nature of his "personal problem", that employe must understand that management need not give him the benefit of any doubt. The Carrier
cannot be expected to act on mere speculation, and if it is left to do so, the
employe has little or no cause for complaint when some discipline is imposed upon
him for his misconduct.
At the same time, management cannot use an employe's unexplained absence as
an opportunity to impose an unduly harsh punishment on the offender. The discipline
assessed must bear some relationship not only to the nature of the offense but
also to the overall work and disciplinary record of the offender.
This Board recognizes that management may discipline within a reasonable
range of disciplinary actiai, but where the discipline is excessive and
unreasonable, the Board will reduce the discipline and fashion an appropriate
remedy. Here, the disciplinary suspension involving twenty-two
(22)
work days
during a period of approximately one calendar month is found unconscionable for
Claimant's offense on January
g, 1979,
in light of Claimant's total record.
Consequently, the disciplinary suspension shall be reduced so as to fall
within a reasonable range of discipline under all circumstances.
Form 1
Page
Award No. 9434
Docket No. 8998
2-sPT-Ew-'83
In fashioning an appropriate remedial award the Board has in mind Rule 39
of the current Agreement that reads, in part:
"If it is found that an employe has been unjustly suspended
or dismissed from the service, such employe shall be
reinstated with his seniority rights unimpaired, and
compensated for the wage loss, if any, resulting from said
suspension or dismissal."
The imposed suspension in this case is found to have been unjustly excessive,
although some disciplinary suspension was warranted.
The Carrier is ordered to reduce the disciplinary suspension to seven (7)
working days and to compensate Claimant for all wages lost after the seventh work
day of the suspensiantizrough March 1, 1979, less interim earnings, if any, that
Claimant realized during the period of the excessive disciplinary suspension which
Claimant would not have received except for the suspension.
A W A R D
Claim 'sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
~RS~
rz~
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of April, 1983.
WOO