Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 1015.2
SECOND DIVISION Docket No. 10248
2-MNCA-MA-'84
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( International Association of Machinists and Aerospace Workers
Parties to Dispute:
( Metro-North Commuter Authority
(Consolidated Rail Corporation)
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
M. Gilbert to service and compensate him for all pay lost up to time of
restoration to service at the prevailing Machinist rate of pay.
2. That Machinist M. Gilbert be restored to service with seniority unimpared
(sic) and compensated for all insurance benefits, vacation benefits,
holiday benefits and any other benefits that may have accrued and were
lost durring (sic) this period in in (sic) accordance with Rule 7-A-1
(e) of the prevailing Agreement which was effective May 1, 1979.
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, M. Gilbert, was employed as a machinist at the Harmon Shop in New
York. Claimant entered the Carrier's service on July 28, 1978.
On November 18, 1981, Claimant was sent a notice requesting his attendance
at a trial in
connection with
the following charges:
Being absent without permission from your work assignment on November 18, 1981, at approximately 7:30 until
the end of your tour of duty.
Failure to mark off properly on November 18, 1981, at the
conclusion of your shift at 8 a.m.
Claimant was found guilty as charged and was dismissed from service in all
capacities.
Form 1 Award No. 10152
Page 2 Locket No. 10248
2-MNCA-MA-184
The Organization's first contention is that the Carrier failed to introduce
evidence of the Claimant's guilt. The organization argues that the only evidence
introduced was the supervisor's testimony that he did not give the Claimant
permission to leave. Further, the Organization argues that the Claimants time
card was properly filled out. This, the organization contends, is not sufficient
evidence to support a finding of guilt.
The Organization further submits that in light of the Claimant's alcohol
problems, which he was attempting to rectify, the Carrier should not have
considered the Claimant's past record to justify dismissing the Claimant.
The Carriers position is that:
1. There is sufficient evidence to support the Carriers determination
of Claimants guilt of being absent from his work assignment at approximately
7:30 a.m. and failure to mark off properly on November 18, 1981; and
2. The proven guilt of Claimant in this
instance, in conjunction with
his past service record, warranted the decision to discharge him.
After a thorough review of the record, this Board finds that there is
sufficient evidence to support the finding of guilt. The Claimant admitted that
he was away from his assigned work area at approximately 7:30 a.m. on November
18, 1981, and that he signed his time card 7:25 a. m. The Claimant testified that:
he had permission from his supervisor, Mr. Head, to leave early. However, Mr.
Head testified that he did not give Claimant permission to leave early; and,
therefore, Claimant was not available at quitting time to mark off properly.
It is well settled that where there is a conflict
in
the testimony of
witnesses at a disciplinary hearing, the Carrier, as the trier of fact, makes the
determination'as to whose testimony to believe; and this Board may not set aside
such findings (see First Division Awards 12072, 15032, and 16848). In this case,
the evidence regarding the question of permission is in direct conflict; and this
Board will not reverse the Carrier's determination that the supervisor should be
believed.
It should be noted that the trial was held open for a day to allow the
Claimant to bring in a certain witness or a statement from the witness to support
the Claimants
contention that
he had permission to be absent. No witness
appeared nor was any statement from the witness produced.
This Board further finds that Carriers action in dismissing Claimant was
warranted in view of Claimant's past service record. The Claimant had been
disciplined five times in his three years of employment. Three of those
disciplines were for offenses similar to the instant offense. The prior
disciplines imposed on the Claimant have not resulted in improved behavior.
Thus, dismissal is warranted.
Form 1 Award No. 10152
Page 3 Docket No. 10248
2-MNCA-MA-184
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
C,~( - i
Nancy .,fiver - Executive Secretary
Dated at Chicago, II/llinois this 7th day of November 1984.
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