Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10897
SECOND DIVISION Docket No. 10759
2-CMSTP&P-EW-'86
The Second Division consisted of the regular members and in
addition Referee Leonard K. Hall when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad
Company violated the current agreement when it unjustly and unfairly dismissed
Assistant Electronic Maintainer John R. Castillo on June 24, 1983 for alleged
falsification of a timesheet, and alleged absence from duty without proper
authority.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad
Company be ordered to make Assistant Electronic Maintainer John R. Castillo
whole by reinstating him to service with all seniority and other rights
unimpaired and compensating him for all lost wages (including lost interest
thereon) and benefits and clearing his record.
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.
This dispute grows out of a charge by the Carrier against the
Claimant for alleged falsification of his timesheet and being absent without
proper authority. The timesheet was for the third pay period in April 1983.
The absences were May 11, 12, 13, 16, 17, 18, 19 and 20, 1983.
Before reaching the merits, we must address the procedural objections
raised by the Organization.
The principal charge is that the Investigation was not fair and
impartial because the Notice given to the Claimant was not addressed to the
Local Chairman. And that since the Local Chairman was not given a copy of the
Notice at least five days prior to the investigation, the charges against the
Claimant should be dismissed and that he be reinstated and paid for actual
wage loss, citing Rule 36 for the latter.
Form 1 Award No. 10897
Page 2 Docket No. 10759
2-CMSTP&P-EW-'86
r
The Carrier admits the oversight. In defense, the Carrier's position
is that the Local Chairman was present at the Investigation, and did not pro
test the oversight. Rule 35, the Investigation Rule, stipulates that a copy
of the Notice shall be given to the Local Organization Representative and the
General Chairman. A copy of the Notice was addressed to the General Chairman.
We note that the Local Chairman was present and that he participated
in the Claimant's behalf. Thus, "a duly authorized representative" was present as is called for in the Rule. We hold that the omission is not sufficient to rescind the discipline assessed.
To assist in avoiding prolonged controversy over technicalities, the
Carrier would be well advised to insure that the Notice requirements of the
Rule are adhered to.
The Organization has also charged that Rules 700 and M-702 cited in
the Notice of Dismissal were not cited in the Charge Notice. This is true;
however, we find no requirement in Rule 35 that an employe be charged with
violating a specific Rule in the Notice. In this instance, the Rules were
read to the Claimant during the course of the testimony and he acknowledged
having read them previously.
The transcript of the accorded Investigation discloses that the
Claimant did indeed submit his timesheet for the third pay period for forty
hours of pay when he actually was not present for his assignment. He filled
it in, personally affixed his signature and in what is reported to be established practice, also signed the Supervisor's name to the timesheet and submitted it for pay purposes. He was paid for that time, but it was later
recovered from his last pay check.
Where employes report their own time, a matter of absolute trust is
involved. They are either trustworthy or they are not. There is no inbetween.
As to the Claimant's absences, he testified that he was tied up with
illness or personal domestic problems but that he did call in or had a friend
do so, perhaps on five days out of eight and on two days, he said he was too
ill to call in himself. Evidence in support of his illness is not apparent in
the record made available to the Board. He offered to explain his domestic
problems but he was not asked to do so. Domestic and personal problems are
ordinarily not sufficient reasons for unauthorized absences.
It has been held many times by the Board that every employe has an
obligation and a duty to report on time and work his scheduled hours, unless
he has good and sufficient reason to be late, to be absent, or to leave early.
Those reasons must be supported by competent and acceptable evidence. No
employe may report when he likes or chooses when to work. No Railroad can be
efficiently operated for long if voluntary absences are tolerated.
Form 1 Award No. 10897
Page 3 Docket No. 10759
2-CMSTP&P-EW-'86
At the conclusion of the Investigation, the Claimant's Representative, the Local Chairman, stated that the Claimant had worked very hard and
expressed the hope that the party or parties reading the Investigation transcript take into consideration the amount of hours and time the Claimant had
put in. He then expressed the further hope that if there is any action to be
done he hoped it would be "very, very lenient."
The Investigating Officer's closing question and the Claimant's response reads:
"Q178. Do you feel that you were afforded a fair
and impartial hearing and that you were
treated in a gentlemanly like manner during
these proceedings?
A. Yes, I think I got a fair hearing. I would
like to add that things are looking better
for me domestically and I would like to say
that I do not wish to lose my job and that
whatever decision is made, its made. Thank
you."
It is not within our authority to remit or modify the discipline
assessed in any manner unless the record shows and the organization has proved
that the Carrier abused its managerial discretion. The record does not so
disclose. The Claimant's contractural rights were not aborted in this proceedings. The dismissal will not be reversed.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
10
Attest:
ancy J. e1(Vr - Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1986.