Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10174
SECOND DIVISION Docket No. 9630
2-B&O-MA-'84
The Second Division consisted of the regular members and in
addition Referee Ida Klaus when award was rendered.
( International Association of Machinists and Aerospace Workers
Parties to Dispute:
( The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That, under the current Agreement, the Baltimore & Ohio Railroad Company
unjustly dismissed from service Machinist Gregory Carter, from the date
of March 6, 1980.
2. That, accordingly, the Baltimore & Ohio Railroad Company be ordered to
reinstate Machinist Gregory Carter to his former position, compensate
him for all time lost, from March 6, 1980 until restored to service,
with seniority unimpaired, made whole for all vacation rights, and
payment for Health and Welfare and Death Benefits, under Travelers
Insurance Policy GA-23000 and Railroad Employees' National Dental P1ar.t
GP-12000.
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.
The claim protests the dismissal of the Claimant for alleged unauthorized
absence from assignment and falsification of daily service card.
The Claimant was employed as a Machinist on a 3:00 to 11:00 p.m. shift at
Curtis Bay Coal and Ore Pier. On March 5, 1980 he worked an assignment rehanging
counterweights from 3:00 p.m. to some time between 8:15 and 9:00 p.m. From
approximately 8:15 until 11:00 p.m. the Superintendent of Maintenance looked for
and was unable to locate the Claimant on the property. Concluding that the
Claimant had left the property, the Superintendent charged him with unauthorized
absence and falsification of time card.
Form 1 Award No. 10174
Page 2 Docket No. 9630
2-B&O-MA-'84
The Claimant asserts that he was on the property until the end of his shift:.
According to the Claimant, upon completion of the rehanging job at 8:30, he took
the truck and equipment back to the shop and then decided to resume his routine
task of checking the car pushers. He remained at the car pushers, he said, until
the end of the shift. Although several witnesses corroborated the fact that he
was on the property at the end of the counterweight rehanging job at about 8:30,,
there was no corroboration of his testimony with respect to his whereabouts after
that.
The Organization argues that there is not substantial evidence to support a
finding that the Claimant was absent from the property. The fact that the
Superintendent could not locate the Claimant, it says, does not establish that he
was absent. The Organization argues further that the Carrier improperly relied
on the Claimant's past record to assess discipline.
The Carrier asserts that the Superintendent's testimony alone is sufficient
to support the charge and that its resolution of credibility cannot be reversed_
After careful review of the record, the Board concludes that the Claimant
has not convincingly accounted for the last two and a half hours of his shift.
That there .is some conflict as to when the Superintendent noticed his absence, is
not material. What is clear is that there is no credible support for the
Claimant's explanation of his whereabouts after 8:30. We conclude that the
Carrier properly resolved the credibility conflict on this point and that the
charge has been sustained by substantial credible evidence.
We find, however, that the penalty imposed was unreasonable and excessive.
Although the Carrier has made reference to a past record, there is no support for
its assertion that it relied upon the Claimant's past record in,assessing the
discipline. We are persuaded that the Carrier based the discipline on this
instance of misconduct alone, and that the dismissal was unwarranted.
Although the Carrier maintains in its Submission that a prior ten-day
suspension for the same offense justified dismissal, there is no record basis for
this conclusion. The Carrier does not indicate when the prior suspension occurred,
nor does it explain any of the details surrounding that prior offense. Without
these specifics, we cannot conclude that the Claimant's conduct as an employe had
worsened to the point where no further penalty other than dismissal was justified.,
We must, then, determine what is a fair and reasonable penalty under the
circumstances. The Organization has not disputed that the Claimant was in fact
previously suspended for the same kind of offense as that committed in the
present instance. Walking off the job without permission is a serious infraction.
It defies authority and it deprives the Carrier of needed services. Accordingly,
we find that a thirty-day suspension is a reasonable penalty.
Form 1
Page 3
Award No. 10174
Locket No. 9630
2-B&O-MA-'84
A W A R D
The Agreement was not violated insofar as the offense alleged is concerned,
however, the penalty was excessive. The Claimant shall be reinstated to his
former employment and he shall be compensated for all wages lost beyond thirty
days.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this 9th day of January 1985.