Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10210
SECOND DIVISION Docket No. 10289
2-SP-EW-185
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company
(Western Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
E. P. Klein was unjustly treated when he was dismissed from service
on January 7, 1982, following investigation for alleged violation of
portions of Rule 801, Rule 802 and Rule 810 of the General Rules and
Regulations of the Southern Pacific Transportation company (Pacific
Lines). Said alleged violation occurring on November 29, 1981, and
December 10, 1981.
2. That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Restore Electrician E. P. Klein to service with all
rights unimpaired including service and seniority,
loss of wages, vacation, payment of hospital and medical
insurance, group disability insurance, railroad retirement contributions, and loss of wages including interest
at the rate of six percent (6%) per annum.
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 Claimant was employed by the Carrier as a Mechanical Department Electrician
at its West Oakland Diesel Shop located in California.
As a result of a formal hearing held on December 16, 1981, the Claimant
was dismissed from service for failure to comply with a letter dated December
8, 1981 from W. A. Schwoerer and for being absent without authority from his
position as Electrician since November 29, 1981.
Form 1 Award No. 10210
Page 2 Docket No. 10289
2-SP-EW-185
The Claimant had established a poor attendance record from April through
October, 1981. Since the Carrier believed that the Claimant's illnesses were
not bona fide, Assistant Plant Manager T. T. Everly sent a memorandum, dated
November 6, 1981 to the Claimant, which included the following instructions:
(a) If he laid off due to illness he was required to present a certificate
from a reputable physician that he had been i11 before he would be allowed to
return to work; (b) by failing to submit such a certificate to the Carrier, he
would be prevented from working until a duty clearance was received from the
Carrier's Chief Medical Officer; and (c) non-compliance with these instructions
would result in more severe action.
After the Claimant's layoff on November 29, 1981 due to "illness", his
Supervisor informed him that he would not be marked up for work until he
submitted a certificate in accordance with Assistant Plant Manager Everly's
instructions. In a letter dated December 8, 1981 from Plant Manager Schwoerer
the Claimant was informed that an appointment for a physical examination had
been made for him on December 10, 1981. The letter set forth the place and
time of the appointment and indicated that the Carrier would pay all expenses,
including transportation. The Claimant failed to show up for the physical
examination.
The record warrants the conclusion that the Claimant did not follow
instructions to report for his physical examination and has been absent without
authority since November 29, 1981. In considering the penalty, the Board is of
the view that extraordinary circumstances are present in this case. On November
29, the Claimant's wife left him with an infant barely three (3) months old-and
two (2) young children to care for. Although the Claimant reported that he was
available for work after November 29, he could not do so until he submitted a
certificate from a physician. Such a certificate could not be obtained because
he was not i11. At the time, he was undergoing extreme emotional distress
caused by severe personal and family problems. Based on the record, it is the
Board's judgment that the Claimant's failure to report to the physical examination
on December 10 (and the formal hearing on December 16) was not due to insubordination
or indifference to duty; rather, it resulted from serious emotional distress.
Due to the unusual mitigating circumstances present in this case, the
penalty of dismissal, from service is deemed to be excessive. Accordingly, the
Claimant's dismissal is reduced to a disciplinary suspension; and he shall be
entitled to reinstatement with seniority unimpaired, with no compensation for
time lost. Before concluding, it should be underscored that the Claimant's
conduct cannot be condoned; indeed, repetition of such conduct, despite his
personal problems, shall justify the penalty of dismissal from service.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: - "r`
Nancy ever - Executive Secretary
1
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Dated at Chicago, Illinois, this 16th day of January 1985.