Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10121
SECOND DIVISION Docket No. 10146-I
2-SOU-I-'84
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( W. E. Parker
Parties to Dispute:
( Southern Railway Company
Dispute: Claim of Employes:
1. W. E. Parker, Carman, was unjustly dismissed from service of Central
of Georgia Railway Company, Southern Railway System, Columbus, Georgia
on October 27, 1981 for allegedly not protecting his assignment on
Job #5, Friday, October 16, 1981, working from 3 P.M. to 11 P.M.
Pertinent portions of transcript of investigation will show that Carrier
failed to prove its charge.
2. That accordingly, the Carrier be ordered to return Carman W. E. Parker
to service with all rights unimpaired including reimbursement of any
loss sustained account of loss of coverage under the Health and Welfare
Agreements and that beginning October 28, 1981 he be paid for all time
lost until restored to 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 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.
The Claimant, a Carman, has been employed by the Carrier at its facility
located in Columbus, Georgia. On Friday, October 16, 1981, the Claimant did not:
report for work, because as a Seventh Day Adventist, he observed the Sabbath. The
Claimant was charged with failing to protect his assignment and at a preliminary
investigation, that was held on October 26, 1981, he said that he would not protect
his assignment on Fridays due to his observance of the Sabbath. He was dismissed
from service on October 27, 1981. His dismissal was confirmed following a formal
investigation which was held on November 3, 1981.
The Board concludes that the Claimant's absence is not excused by his religious
conviction. In Public Law Board, 2335, Award 1, the following was stated:
"The Board finds that Carrier's conclusion that Claimant's absences
were not excuseable because of his religious beliefs is sound, proper
and a conclusion that will be here upheld. The issue raised is not a
new one in the industrial world. A case involved facts similar to those
here was brought before the United States Supreme Court in Trans
World Airlines, Inc. vs. Hardison, 432 U.S. 63 (1977)."
Form 1
Page 2
Award No. 10121
Docket No. 10146--I
2-SOU-I-'84
The Carrier is not required to circumvent the seniority system or its work
schedule by granting the Claimant preference over other employes with regard to the
selection of assignments and hours to accommodate his religious needs. See Second
Division Award No. 8660. There is no Rule in the Agreement which entitles the
Claimant to special consideration based upon his religious convictions. To sustain
the instant claim would require the Carrier to permit the Claimant to work a four
(4) day week or pay overtime in order to cover his assignment. Either result is
untenable.
Prior to October 14, 1981, the Claimant held a job which did not present a
conflict between his observance of the Sabbath and the assigned working hours on the
job. By his bid which was received by the Carrier on October 12, 1981 he voluntarily
chose to change jobs and thus he was aware that he would be required to work on
his chosen Sabbath.
It is not disputed that the Claimant informed his foreman that he would be
absent on October 16, 1981 to observe the Sabbath. The Claimant never requested
permission to be absent on October 16; nor was it given by the Carrier. Rule 30
(a) requires an employe to notify his foreman; it does not excuse absenteeism for
other than good cause, which was not demonstrated in this case.
In light of the Claimant's failure to protect his assignment on October 16.,
1981 and his steadfast determination not to protect his assignments on Fridays,
the Board has no alternative other than to sustain his dismissal by the Carrier..
A W A R D
Claim denied.
01
Attest: ~4~114~
NATIONAL, RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this
17th day of October 1984.