Y
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9898
SECOND DIVISION Locket No. 9890
' 2-SOU-FO-184
The Second Division consisted of the regular members and
in addition Referee W. J. Peck when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Southern Railway Company
Dispute: Claim of Employes:
1. That under the controlling agreement, Laborer L. B. Simmons, I.D. No.
264-31-3918, was unjustly dismissed from the service of the Southern
Railway Company on November 12, 1981, after a formal investigation was
held on November 6, 1981.
2. That accordingly, L. B. Simmons, Laborer, be restored to his assignment,
seniority rights restored unimpaired, vacation, Health and Welfare,
Hospital and Life Insurance and Dental Insurance be paid and compensated
for all lost time, effective November 12, 1981, at the pro-rata rate
of pay, 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 were given due notice of hearing thereon.
Mr. L. B. Simmons, hereinafter referred to as the Claimant, was employed
as Laborer, by the Southern Railway Company, hereinafter referred to as the
Carrier, at Atlanta, Georgia, on date of June 7, 1979. At the time the incidents
over which this dispute arose, Claimant's assigned working hours and days were
7:00 A.M., to 3:00 P.M., Friday through Tuesday, with Wednesday and Thursday
as rest days.
On date of November 2, 1981 a preliminary investigation was held on Claimant
by Mr. R. L. Watson General Foreman. No written notice that this preliminary would
be held appears in the record nor any record of what actually occurred at that
investigation. However, on date November 3, 1981, the General Foreman advised
the Claimant that he had been charged with:
"1. Loitering in and outside of the diesel shop other than your
assigned work area at approximately 1:45 P.M., November 1, 1981.
2.
Insubordination in
that you refused to submit to instructions
from General Foreman C. F. Shoaf to stop and explain your
activities at the south end of the diesel shop and why you were
carrying a bucket with a journal brass in it at approximately
1:45 P.M., November 1, 1981.
Form 1 Award No. 9898
Page 2 Docket No. 9890
2-SOU-FO-184
"3. Failure to protect your job assignment in that you were absent
two (2) days, tardy seven (7) days and got off early one (1) day
since October 4, 1981."
The General Foreman also advised the Claimant that based on the facts developed
during the preliminary investigation that "it is my opinion that you are guilty
as charged" and that "for your offence you are dismissed from the service of the
Southern Railway Company effective at 10:00 A.M., November 2, 1981". However,
that "since you have disagreed with the disciplinary action taken by me and verbally
requested a formal investigation--the imposition of the discipline--is being held
in abeyance pending completion of a formal investigation".
On date of November 4, 1981, the Carrier's Manager of the Atlanta Diesel Shop
wrote Claimant advising him that a formal investigation would be held on date
of November 6, 1981. Claimant was also advised that he should arrange for necessary
witnesss and duly accredited representatives (Local Chairman or Committeeman).
The investigation was held as scheduled and under date of November 12, 1981, the
Carrier wrote Claimant and affixarted the discipline assessed at the preliminary
investigation.
The Claimant was charged with loitering, insubordination, and failure to
protect his assignment. The record does show that Claimant had asked for and
received permission to leave his work assignment at approximatley 1:30 P. M., on
November 1, 1981 to get a coke. There seems no dispute over the fact that he was
gone for approximately one hour and ten minutes and that he did
engage in
activities
other than getting a coke. This is shown in the following testimony. Hearing
Officer questions the Claimant:
"Q. Is it true that you didn't return to the filter house until about
2:55 P.M.?
A. I'd been back to the filter house.
Q. Well what did you do between 1:30 and 2:55 P. M., on November 1?
A. Well like 1 said, I came up here to get a coke and talked to some
of the employes. I went by-to m y locker, by way o f my locker-to my locker. I even went outside looking for electrician R. C.
Jones car a few times which then I didn't see him, and I also...
that incident that occurred where I seen him coming one way and
I went the other way which is like I said, the first time 1 knew
that I wasn't supposed to be there that it wasn't my assigned
area.
Q. What was the purpose of looking for R. C. Jones?
A. It was something I wanted to discuss with him.
Q. Was it of a personal nature?
A. Right.
Q. What would you be doing in that area?
A. I was going out to see if R. C. Jones car was in the parking lot,
electrician R. C. Jones car.
Form 1 Award No. 9898
Page 3 Docket No. 9890
2-SOU-FO-'84
"Q. Why would an electrician be parking in this parking lot?
A. Well there's the times I've knom that he has parked here because
he worked relief foreman.
Q. Could you not have handled personal business with R. C. Jones
at a time other than when the company was paying you?
A. Mr. Thompson, at that time I could have, right. At that time
I was down here at my locker, so I decided that I would look out
there to see and like I said I seen him so I went the other way,
because I knew I was out of place, I felt the filter house was
where I was supposed to be.
Q. You mean when you saw Mr. Shoaf you went the other way. Because
you knew you were out o f place.
A. Right.-
Claimant was also charged with but denied, being insubordinate in that when
found away from his assigned work area by General Foreman, and being told to stop
he refused, saying that the General Foreman was "not going to frame him". There
is a certain amount of conflict in the testimony as to what actually did transpire
in the encounter, but no conflict in the fact that he did not stop and explain his
presence in that area.
The final charge against the Claimant was failure to protect his assignment
in that he had been absent tr..v (2) days, tardy seven (7) days and off early all
in approximately one (1) months time just prior to the investigation. Again, there
is a conflict in the testimony as to the reasons for these absences, but no
conflict in the fact that they actually did occur.
Claimants record also shows that he had been suspended for two (2) days
in July of 1980, for failure to protect his job assignment, suspended for four (4)
days in October of 1980, for being away from his job assignment, suspended for
five (5) days in May of 1981 for failure to protect his job assignment, and
suspended for seventeen (17) days in July and August of 1981, for failure to
protect his job assignment, and suspended for three (3) days in September of 1981,
for failure to perform his assigned duties and loitering.
In considering this case re also note that Rule 30 of the Agreement betceen
the Carrier and the organization reads as follows:
"Rule 30. (a) In case an employee is unavoidably kept from work,
he will not be discriminated against. An employee detained from
work on account of sickness or for other good cause shall notify
his Foreman as early as possible.
(b) The provisions of paragraph (a) shall be strictly complied with.
Excessive absenteeism (except due to sickness under paragraph (a)
above) and/or tardiness will not be tolerated and employees so charged
shall be subject to the disciplinary procedures of Rule 30.
Form 1 Award NO. 9898
Page 4 Docket No. 9890
2-SOU-FO-'84
"(c) An employee in service who fails to protect his assignment
due to engaging in other employment shall be subject to dismissal."
In considering this case re do not feel that Claimants approximately one (1)
hour and ten (10) minutes absence from the job on date of November 1, 1981 nor
the degree of alleged insubordination (which could have been simply a misunderstanding) would justify the supreme penalty of dismissal. However, the
failure to protect his job
assignment (and
particularly in view o f Claimant's
past record which is deplorable) is another matter. No company can exist and
give the kind of service needed to stay in business if an employee can work only
if and when he chooses. And because Rule 30 is an agreement between the Carrier
and the Union representing the Claimant, it is clear that the Union has so agreed.
In considering all of the record and all of the evidence presented by both parties,
we have no choice but to deny this claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 9th day of May, 1984