Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11869
SECOND DIVISION Docket No. 11747
90-2-89-2-32
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo, Jr. when award was rendered.
(International Brotherhood of Firemen & Oilers
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
1. That Laborer Larry E. Ewing was unjustly dismissed from the
service of the Union Pacific Railroad Company on October 23, 1987.
2. That accordingly, the Union Pacific Railroad Company restore
Laborer Larry E. Ewing to service--
(a) With his seniority rights unimpaired;
(b) Compensation for all time lost;
(c) Made whole all vacation rights;
(d) Paid premium (or hospital dues) for hospital,
surgical and medical benefits for all time held
out of service;
(e) Pay premium for his group insurance for all time
held out of service.
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 were given due notice of hearing thereon.
The Claimant was dismissed from the service of the Carrier on October
23, 1987, for excessive absenteeism. The Organization contends that the Carrier violated Rule 7, paragraph C of the controlling Agreement which reads:
"No employee will remain away from service
without obtaining permission from his foreman,
but if sickness or other unavoidable causes
prevents him from reporting to his regular post
of duty, he shall notify the foreman promptly."
Form 1 Award No. 11869
Page 2 Docket No. 11747
90-2-89-2-32
The record indicates that during the period of time the Claimant was charged
with being excessively absent June 1 through September 22, 1987, he had
incurred four (4) early outs and one (1) day absent without authority and
three (3) days sick. By Carrier witness's own testimony, the Claimant had
permission for each early out. While the Claimant was not given permission to
lay off on the day of absence, he did furnish medical documentation that the
Carrier rejected.
Considering the application of the appropriate Rules, it does not
appear, on its face, that the Claimant was excessively absent. However, the
Board recognizes that the Carrier also took into consideration the Claimant's
discipline record which includes a thirty (30) day deferred suspension for
failure to protect his assignment and other disciplinary action.
While this Board is reluctant to disturb a Carrier's imposition of
discipline, the weight of the evidence does not support the Carrier's contention that Claimant knowingly and willingly violated Company Rules. However,
the Board does recognize the Carrier's concern based on the Claimant's past
record. In balancing these two considerations, the Board will direct the
Carrier to convert the dismissal to a suspension. Claimant shall be reinstated with seniority and other rights unimpaired but without backpay.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 6th day of June 1990.