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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9808
SECOND DIVISION Docket No. 9390
' 2-SOU-FO-'84
The Second Division consisted of the regular members and in
addition Referee Steven Briggs when award was rendered.
( Int'1. Brotherhood of Firemen and Oilers
Parties to Dispute: ( System Council No. 44, AFL-CIO
( Southern Railway Company
Dispute: Claim of anployes:
1. That under the current and controlling agreement, Laborer, M. B.
Macias, II, S. S. No. 265-15-8895, was unjustly dismissed from service
of the Southern Railway Company, on August 1, 1980, after a preliminary
investigation was held on June 14, 1980, in the office of Mr. P. H.
Freeman, General Foreman.
2. That accordingly Laborer M. B. Macias, II, be restored to service
with his regular assignment at Inman Yards, compensated for all lost:
time, vacation, health and welfare, hospital, 1ife.and dental insurance
premiums be paid effective June 22, 1980, (date of suspension) and
the payment of 6% interest rate be added thereto.
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 employes 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.
The Claimant joined the Carrier's employ in September, 1977, and was assigned
as a Laborer in its Diesel Locomotive Fueling facility in Atlanta, Georgia,
During the first five months of 1980, he reported absent from work on 21
occasions on account of jury duty. Each time, he marked off his time card and
was compensated for the day at his regular rate. At the Carrier's request, the
Claimant submitted the following Court verification statement:
"This is to certify that Miguel B. Macias has served 19 days, 1-23-80
through 5-23-80, as a Special Grand Juror in the Superior Court
Criminal Division, and is entitled to a total of $285.00 which is
fifteen dollars per day expense allowance for each day of appearance.,,
On May 27, 1980, General Foreman Freeman compared the Claimant's time cards
against the above statement. 8e discovered that the Claimant had accepted pay
from the Carrier for 21 days of jury service, when according to the court he .had
served only 19 days. The Claimant was subsequently charged with falsification o f
his time card, excessive absenteeism, and excessive tardiness.
Form 1 Award No. 9808
Page 2 Docket No. 9390
2-SOU-FO-184
After a preliminary investigation of the charges was conducted on June 24,
1980, the Claimant was suspended for 30 days. Later the same day the Claimant
asked for a formal investigation. The Carrier granted his request and decided to
hold the suspension in abeyance pending outcome of the formal
investigation.
Again on that same day (June 24, 1980) the Claimant advised the Carrier he had
decided to withdraw his request for a formal
investigation. The
Carrier then
told him that the 30-day
suspension would
begin immediately.
On ,Tune 27, 1980, after he had begun serving the suspension, the Claimant
advised the Carrier by letter that he had again changed his mind and wanted a
formal investigation. The Carrier granted his request and held the remainder of
the suspension in abeyance.
After several postponements at the request of both parties, a formal investigation.
was ultimately conducted on July 25, 1980. Master Mechanic F. L. Brown notified
the Claimant in an August 1, 1980, letter that the charges against him had been
confirmed. The letter also stated:
"With regards to the charge of excessive absenteeism and tardyness.(sic)
. The transcript of the Formal Investigation show (sic) that the middle
of January through the middle of July you were absent more that you
worked. Out of 120 probable work days you only worked 53 days. In
addition, you were tardy 18 of the 53 days which you worked. General
Foreman Enrick testified that he had talked to you on many occasions
about your work record but saw no
improvement.
The formal investigation showed clearly that you are guilty of
falsifying your time card and excessive absenteeism and tardyness (sic)
as charged. Therefore, you are dismissed from service with the
Southern Rail Company, effective this date."
The Organization feels that the Claimant's dismissal was unjust, especially
since he had not received any previous suspension for absenteeism or tardiness.
It also asserts that the Carrier's method of payment for jury service entrapped
the Claimant. That is, over the five months o f his jury service the Carrier
should periodically have deducted his court-paid
compensation from
his regular
earnings for each day of jury service. Such a procedure conforms to the December
6, 1978 Agreement, and would have required to Claimant to submit regular court
verification of jury service.
The Carrier maintains there is no question the Claimant falsified his time
cards. He was given every opportunity to resolve the discrepancy between the 21
days he claimed for jury service and the 19 days he actually served. He did not
do so.
The Carrier also argues that its method of payment for jury service has no
hearing on this case.
Form 1 - Award No. 9808
Page 3 Docket No. 9390
2-SOU-FO-184
With respect to the Claimant's absenteeism and tardiness, the Carrier notes
that during the 30 days prior to the preliminary investigation he did not work
and did not so advise the Carrier on 9 days. During that same period he was also
absent 6 more days when he reported off for various reasons, and twice failed to
work his entire shift.
Finally, the Carrier maintains that it properly converted the Claimant's 30day
suspension to
discharge. It cites rule 34(a) & (d) of a May 8, 1975,
Agreement in support of its position:
(a)...The investigation, which shall be held within five days from the
date request therefor is made, shall be conducted for the purpose of
determining the propriety of the balance of the discipline assessed and
decision with respect thereto shall be rendered as provided in
Paragraph (d) of Rule 34.
(d)...The Carrier officer conducting the formal
investigation shall
receive all evidence, including testimony or statements of witnesses
concerning the
act or acts upon which the discipline was based, and he
shall render a
decison affirming;
modifying (by increasing or
decreasing) or revoking the prior disciplinary action.
The Board has concluded from study of the formal
investigation that
the
e
Carrier's decision to discharge the Claimant was reasonable. First, we are
persuaded from the record before us that he falsified his time cards with the
intent to
defraud the
Carrier. He claimed 21 days' pay for jury service, received
said pay, and therefore has the obligation to verify such service. He did not do
so. We find this offense alone of sufficient magnitude to justify his termination.
The Claimants chronic absenteeism, and to some extent his tardiness as
well, add to the severity of his offense. We take note that he received no prior
suspensions for his absence/tardiness record. Accordingly, if his discharge had
been based solely on that record we would question whether he had received the
benefit of progressive discipline. But again, falsification of his time cards is
serious enough on its own to justify termination.
Moreover, the Board is not persuaded that the Carrier's method of payment
for jury service entrapped the Claimant. The Carrier did not encourage him to
falsify the time cards, nor do we believe verification of an entire course o f
jury service after its completion would somehow induce an honest employee to
falsify Carrier records.
Finally, we find nothing improper in the Carriers decision to convert the
30-day suspension to a discharge. Its reliance on the terms of Rule 34 (quoted
in part herein) for authority to do so is proper.
Form 1
Page 4
Claim denied.
Attest:
4**!A9- e4e~
Award No. 9808
Docket No. 9390
2-SOU-FO-'84
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy
- Executive Secretary
Dated at Chicago, Illinois, this 7th day of March, 1984