Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9545
SECOND DIVISION Docket No. 9782
2-MKCSJA-FO-'83
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Milwaukee-Kansas City Southern Joint Agency
Dispute: Claim of Employes:
1. Under the current controlling agreement, Firemen & Oiler J. C. Blasco
in the locomotive department for the Milwaukee-Kansas City Southern Joint
Agency, Kansas City, Missouri was unjustly dismissed from service of
Carrier on September 3, 1981 in letter addressed to J. C. Blasco dated
September 3, 1981.
2. That accordingly, Firemen & Oiler (Laborer) J. C. Blasco be made whole,
restored to Carriers service with all seniority rights, vacation rights,
Holidays and all other benefits that are a condition of employment
unimpaired and compensated for all wages lost from date dismissed,
September 3, 1981 plus 6% interest on all such wages, also reimbursement
for all losses sustained account loss of coverage under health and welfare and Life Insurance agreements during time 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, 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.
On September 3, 1981, an investigation was held to determine the facts
relative to the charge that the Claimant failed t~? protect his assignment on
August 22 and 26, 1981. Following the investigation, the Claimant was dismissed from
service on September 3, 1981.
The foundation of the Organization's appeal, on the property, is that the
Claimant, on both dates for which he is charged with absence, telephoned the Carrier
to convey a message that he had overslept. On the first occasion, the Organization
contends that the Foreman told the Claimant that his position had been filled for
that date. The Foreman then asked whether the Claimant would be reporting to work
the next day. The Claimant replied affirmatively. At that point, the Foreman
allegedly thanked the Claimant for calling. In the Claimant's version, the Foreman's
remarks left him with the impression that his assignment had been protected.
Form 1
Page 2
Award No. 9545
Docket No. 9782
2-MKCSJA-FO-'83
On the second occasion, August 26, 1981, the Claimant testified that when he
telephoned the Foreman, he was told not to come to work. He, therefore, contends
that because he called and was told not to report for work, he was carrying out
instructions and accordingly, his assignment should have been protected.
The Carrier contends that the governing agreement requires that its employees
obtain permission to absent themselves from work. In the Carrier's opinion, the
circumstances shown to exist during the investigation of the incidents under
dispute did not meet the requirements of the agreement.
Certainly, the Claimant's contentions are not without merit. Nevertheless,
during the investigation, his own statements acknowledged that he did not receive
permission to be absent from work. Consequently, it is quite clear that guilt of
the charge has been established. Although we are reluctant to modify the Carrier's
disciplinary penalty, in view of the facts and circumstances brought forth in
the record of this proceeding, we consider permanent dismissal to be excessive
discipline. The Claimant is to be restored to the service, with seniority and
other rights unimpaired, but without compensation for time lost while out of the
service. The Claimant should understand that the purpose of this Award is to
give him a final opportunity to become a useful and reliable employee. The Board
expects him to comport faithfully with his employment obligations in the future.
A W A R D
The Claim is hereby sustained to the extent indicated in the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
os~marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 6th day of July, 1983.