Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11122
SECOND DIVISION Docket No. 11195
2-KCS-CM-'87
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute
:
(Kansas City Southern Railway Company
( huisiana & Arkansas Railway Company
Dispute: Claim of Employes
:
1. That the Kansas City Southern-Louisiana & Arkansas Railway
Company violated the Railway Labor Act when Cayman S. McDonald was not
permitted to work on the dates of April 29, 30, May 1, 2, 3, 6, 7, 8, 9, 10,
13, 14, 15, 16, 17, 20, 21, 22, 23, 24, and 27, 1985, and lost eight (8) hours
pay per day.
2. That the Kansas City Southern-Louisiana & Arkansas Railway
Canpany be required to make S. McDonald whole by removing all reference to
this suspension from his personal record and pay him eight (8) hours pay at
the proper pro rata rate for the dates of April 29, 30, May 1, 2, 3, 6, 7, 8,
9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24 and 27, 1985 and remove all
reference of this discipline from the personal record of Cayman Sam McDonald.
FINDINGS:
The Second Division of the Adjustment Hoard, 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 had been in Carrier's service fran October 1, 1969. At the
time of the occurrence giving rise to dispute herein, Claimant was employed as
a Cayman at Shreveport, Louisiana. On March 7, 1985, Claimant was notified by
Carrier's Assistant Superintendent Car Department to appear for an Investigation for allegedly not protecting his assignment.
Form 1 Award No. 11122
Page 2 Docket No. 11195
2-KCS-CM-187
By agreement, the Investigation was postponed and conducted on March
21, 1985, with Special Representative of Car Department as Conducting Officer.
A copy of the Transcript of the Investigation has been made a part of the
record. We have reviewed the Transcript and find that the Investigation was
conducted in a fair and impartial manner. We find no proper basis for the contention that the charge against Claimant was vague and imprecise. It advised
Claimant in clear language what the Investigation was about:
"...your failure to protect your job assignment and
being absent fran work without permission February 27,
28, and March 1, 1985."
There is no requirement that a specific rule be cited in a Letter of Charge.
The charge was sufficiently precise to enable the Claimant and his Representative to prepare a defense. It met the requirements of the Agreement.
The multiple roles of the Assistant Superintendent Car Department, as
the Charging Officer and the first Appeal Officer, after testifying in the
Investigation, in no manner deprived Claimant of a fair hearing, nor denied
him the appeal process, especially as further appeal was made to higher
officers than the Assistant Superintendent Car Department.
Following the Investigation conducted on March 21, 1985, Claimant was
assessed discipline of thirty days suspension from service by letter dated
April 22, 1985.
Rule 15 of the applicable Agreement, which was read into the Investigation, reads:
"RULE 15
Absence From Work Without Leave
"In case an employee is unavoidably kept from work,
he will not be disciplined. An employee detained
fran work on account of sickness, or any other good
cause, shall notify his foreman as early as possible."
In the Investigation there was substantial evidence adduced by the
Car Foreman and the Assistant Superintendent Car Department, that Claimant was
not present for work on the dates involved in the Letter of Charge, nor were
they made aware of the reason for his absence. The Claimant contended in the
Investigation that his wife called the Car Foreman and the Assistant Superintendent Car Department and advised that Claimant would be unable to protect
his assignment on February 27, 28 and March 1, 1985. The Car Foreman and the
Assistant Superintendent Car Department denied having received any notice from
Claimant's wife that Claimant would be unable to protect his scheduled work
assignment on the dates involved.
Form 1 Award No. 11122
Page 3 Docket No. 11195
2-KCS-CM-187
While there were conflicts between the testimony of Claimant and the
testimony of the Car Foreman and the Assistant Superintendent Car Department,
it is well settled that this Board will not weigh evidence, attempt to resolve
conflicts therein, or pass upon the credibility of witnesses. Conflicts in
evidence do not warrant disturbing the Carrier's action.
The Claimant contended he was ill because of a rash. There is
nothing in the record to indicate that Claimant was disabled to the extent
that he was unable to personally contact supervisory personnel on the dates
involved.
We find no proper basis to interfere with the discipline imposed by
the Carrier. See Second Division Award Nos. 9972 and 6710.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
01
Attest: ~
_
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 7th day of January 1987.