Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11886
SECOND DIVISION Docket No. 11829
90-2-89-2-171
The Second Division consisted of the regular members and in
addition Referee William 0. Hearn when award was rendered.
(International Brotherhood of Firemen & Oilers
PARTIES TO DISPUTE:
(Norfolk Southern Corporation
(Southern Railway Company)
STATEMENT OF CLAIM:
1. That under the current and controlling agreement Equipment
Operator D. A. Stewart, S.S. No. 415-80-7683, was unjustly dismissed from
service on September 9, 1988 by Mr. M. J. Adamczyk, Manager-Coster Shop, after
a formal investigation was conducted by Mr. Adamczyk on August 31, 1988.
2. That accordingly, Equipment Operator D. A. Stewart be restored to
his position with Southern Railway System, be made whole for all lost time,
with seniority rights unimpaired, vacation, health and welfare, hospital and
life insurance benefits be paid effective September 10, 1988 and the payment
of 10% interest rate 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.,
0n August 19, 1988, Claimant was notified to attend a formal Investigation on August 31, 1988, in connection with his failure to follow instructions issued to him verbally via telephone at approximately 2:10 P.M. on July
20, 1988, in that he failed to report to the office of the Coster Shop Manager
to arrange for a return to duty physical or furnish written, satisfactory
evidence from a medical doctor showing that he was unable to perform the
duties of his assignment by July 29, 1988.
Form 1 Award No. 11886
Page 2 Docket No. 11829
90-2-89-2-171
On July 25, 1988, Claimant was notified that a further charge was
being made against him in the formal Investigation to be held on August 31,
1988, that is to determine his responsibility in connection with his violation
of Norfolk Southern Safety and General Conduct Rule G C R-5 in that he failed
to notify the proper officer of the change in his current address no later
than fifteen (15) days following the change.
Again on August 31, 1988, Claimant was given a letter charging him
with failure to protect his assignment in that he failed to provide medical
evidence as proof of his reasons for absence as instructed by Carrier Officers. He was notified that this charge was in addition to those detailed in
letters dated August 25, 1988, and August 19, 1988.
We find that Carrier did present substantial evidence in support of
the Claimant's failure to furnish medical evidence that he was unable to perform his duties as a Laborer. As to the second charge that he failed to notify the proper officer of the Carrier of his change of address. The Claimant
was familiar with Carrier's Safety and General Conduct Rules Book No. 130. He
was presented with a copy of these Rules and signed for them on June 26, 1987,
G C R-5 was among these Rules. Carrier's witness testified that he went to
Claimant's home; there was no furniture in the house and the air conditioner
was removed from the house. At that time, a neighbor was sitting on his porch
across the street and he told the witness that Claimant had not been there in
approximately three (3) weeks. The witness then contacted the landlord, the
owner of the building. The landlord stated to the witness that-the contents'
of the house were removed July 29, 1988. The Carrier's witness testified
further that his first knowledge that Claimant's address had changed was July
7, 1988, when he first went out to Claimant's house and found no one was
living at that address. We find that Carrier produced substantial evidence to
support the charge of Claimant's failure to keep Carrier informed of his
current address.
It is also the opinion of this Board that the charge dated August 31,
1988, was not a surprise to Claimant. He was aware of the fact he did not
protect his assignment and he did not provide evidence of his reasons for
absence as instructed by Carrier Officers.
As stated in Second Division Award 11261:
"In discipline cases the burden is on the Carrier to produce substantial evidence support of
the charge. The 'substantial evidence' rule was
set forth by the Supreme Court-of the United
States as:
"Substantial evidence is more than a mere
scintilla, it means such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion."
(Consol. Ed. Co. vs Labor Board, 304 U.S., 197,
229.)
Form 1 Award No. 11886
Page 3 Docket No. 11829
90-2-89-2-171
(Second Division Awards 6419, 11179, 11180, 11184, 11239, 11240, among others.)
We find based upon the record, Carrier has proven their charges.
Therefore, based upon this fact and Claimant's past record; the Claim must be
denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 27th day of June 1990.