Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 1019:?
SECOND DIVISION Docket No. 9660
2-L&N-FO-'85
The Second Division consisted of the regular members and in
addition Referee Ida Klaus when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1. That under the current and controlling agreement, K. D. Garvin, I. D.
No. 261830, was unjustly dismissed from service of the Louisville and
Nashville Railroad Company on July 20, 1981, after a formal investigation
was held on July 6, 1981.
2. That accordingly Service Attendant K. D. Garvin be restored to his
regular assignment at L & N Railroad South Louisville Shops, Louisville,
Kentucky, compensated for all lost time, vacation, health and welfare,
hospital and life insurance and dental insurance premiums be paid effective
July 20, 1981, and the payment of 6% interest rate be added thereto.
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 conduct unbecoming an
employe and leaving Company property without permission.
The Claimant, a Service Attendant, requested permission to leave work on May
28, 1981 because of. illness. He did not explain the nature of his illness and' he
refused to see the Company nurse or to be taken to the hospital. When his request
was denied by two Supervisors, he shouted at them about taking food out of his,
children's mouths. According to his Supervisors, the Claimant threatened one of
them with bodily violence while making that statement. The Claimant testified'
that he left because he was ill with a subsequently discovered kidney infection,
and he denies that he ever threatened physical violence even though provoked when
one of the Supervisors used a racial epithet against. him.
Form 1
Pa ge 2
Award No. 10192
Docket No. 9660
2-L&N-FO-'85
Upon careful review of the entire record, the Board finds the charges to be
supported .by credible substantial evidence. By refusing competent medical
attention and failing to disclose the nature of his illness, the Claimant failed
to justify leaving without permission. We also find credible the testimony of
the physical threats by the Claimant against his Supervisor. That conduct is in
itself a dischargeable offense; and no mitigating factors are present here. It
is clear from the words of the Claimant's threat that he was reacting to the
possibility of discharge and not to any perceived racial epithet.
As to the penalty imposed, the Board finds dismissal warranted particularly
in light of the Claimant's past record for the 13 months of his actual employment.
This incident occurred only two months after his reinstatement on a leniency
basis following a discharge of five months. The claim must therefore be denied.
A WAR D
Claim denied.
Attest:
TiG~`
Nancy . ever - Executive Secretary
Dated at Chicago, Illinois, this 9th day of January 1985.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division