Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10000
SECOND DIVISION Docket No. 9354
2-L&N-CM-'84
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( The Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1.(a) That Carmen J. W. Barrow was improperly given a sixty (60) day actual
suspension from service of Carrier from January 14, 1980, through
March 14, 1980, inclusive in violation of Rule 34 of the Current
Agreement by way of letter dated January 11, 1980, and
(b) Accordingly, the Louisville and Nashville Railroad Company should be
ordered to compensate Carman Barrow for all time lost as a result of said
improper suspension, or three hundred sixty (360) hours at the straight
time rate of pay.
(c) Carrier should also be instructed to clear Carman Barrow's personal file
of all implications and allegotions (sic) as charged.
2. (a) That the Carrier is improperly giving actual days suspension as discipline
which is not, in line with the provisions of Rule 34 Discipline, of the
Current. Agreement, and
(b) According (sic), Carrier should be instructed to suspend such actions unti~
such time as the matter of giving actual days off has been contractually
agreed to.
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.
Following an investigative hearing, Claimant was assessed a disciplinary
penalty of 60 calendar days for "insubordination and leaving your job without
permission". Giving rise to the charge was an incident in which the Claimant
advised his Foreman that he was i11 and was going home, at. the time that the
Foreman was giving further work instructions to the Claimant and two other employes
at approximately 1:05 p.m.
Form 1 Award No. 10000 low
Page 2 Docket No. 9354
2-L&N-CM-'84
The record shows that the Foreman did not grant or withhold permission for
the employe's departure. When the Foreman followed the employe to the latter's
car to seek further information regarding the nature of the illness, the Claimant
provided no information and simply drove away.
The Organization argues that the Claimant was in compliance with Rule 22 and
should not be subject to discipline. Rule 22 reads as follows:
"RULE 22 Absence Account Sickness
An employee detained from work account of sickness
or other good cause shall notify his foreman as early as
possible."
Rule 22 does not exempt an employe from providing information such as
requested by the Foreman, especially when the "illness" arose in the middle of the
shift as additional work was being assigned. The Foreman, however, could well
have given an affirmative or negative answer at the time of the employe's original
statement. Discipline is warranted, but the penalty is overly harsh in view of
the circumstances.
The Organization also contends that the imposition of a 60-calendar-day
suspension was improper, since the organization alleges that the Carrier was using
the "Brown System of Discipline" which had not been negotiated. There is no
substantiation that such penalty is improper under Rule 34, however, and the Board
has no basis to support the Organization's contention.
A W A R D
Claim No. 1 sustained to the degree that the penalty shall be modified to a
30-calendar-day suspension, and the Claimant shall be made whole for straight-time
earnings lost thereafter.
v.
Claim No. 2 denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy . y'ever - Executive Secretary
r7e
Dated at Chicago, Illinois, this 1st day of August 1984.