Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9924
SECOND DIVISION Locket No. 9372
2-SP-SMW-'84
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr., when award was rendered.
( Sheet Metal Workers International Association
( District Council 114
Parties to Dispute:
( Southern. Pacific Transportation Co.
Dispute: Claim of anployes
(1) That claimant D. M. Johnson was unjustly dismissed and Carrier failed its
burden of proof of charges against claimant.
(2) That claimant be restored to duty with seniority unimpaired.
(3) That claimant be compensated by Carrier for all time lost and for all
contractual benefits lost as result of unjust dismissal.
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.
Claimant was subject to an
investigative hearing
under the charge of his
"alleged submission of a falsified form, CS 5662 Return-To-Duty Status Form"...which
may be in violation o f Rule 801".
Rule 801 reads in pertinent part: "Employees will not be retained in service
who are.. .dishonest. "
The Board finds that the hearing was conducted in a fair and proper manner.
The Claimant laid off "sick" during his shift on July 29, 1980 and was absent
thereafter throughout the month of August. The Carrier received a letter dated
August 28, 1980 signed by Richard T. Hoopes, DDS, which stated:
"Darrell Johnson has been released from my care after having his
third molars surgically extracted. He .may now resume work."
Form 1 Award No. 9924
Page 2 Docket No. 9372
2-SP-SMW- ' 84
The letter indicated no dates of disability. Following normal procedure in
instances where employees are absent because of illness for more than a month, the
Carrier requested the Claimant to have a Form 5662 completed by his physician prior
to clearance by the Carrier's physician. Claimant submitted such form, but it:
appeared to be fraudulently filled out. Consultation was held with Dr. Hoopes, whose
name appeared on the form. Dr. Hoopes, in a written statement entered at the
investigative hearing, denied that the form had been prepared or signed by himself
or any of his staff. The form alleged a period of disability from August 7
to August 28, 1980.
Although the Organization questioned the propriety of the use of Dr. Hoopes,
written statement at the hearing, the Board does not find its inclusion to be improper,
Testimony was given by a Carrier witness as to an interview with Dr. Hoopes and
the circumstances of obtaining the statement. The questioned form itself clearly
indicates suspicious unprofessional wording and misspelling.
The Claimant testified that he had asked a "friend" to deliver the form to
Dr. Hoopes and that he did not review it when it was returned to him. The "friend"
was not brought forward by the Claimant as a witness at the hearing.
The Carrier found the Claimant's explanation incredible, and the Board hats
no basis to find otherwise. The resulting falsification, apparently to cover the
Claimant's month-long absence, was a serious offense, and there is ample support
for the penalty of dismissal.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST:
Nan . Dever - Executive Secretary
Dated at Chicago, Illinois, this 30th day of May, 1984