Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13807
Docket No. 13694
04-2-03-3-38
The Second Division consisted of the regular members and in addition Referee
Carmelo R. Gianino when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM
:
"1. That the Kansas City Southern Railway Company violated the
controlling Agreement, particularly, but not limited to, Rules
15 and 29, when Shreveport, Louisiana Electrician C. K.
McCormick was unjustly and arbitrarily dismissed from the
service of the Kansas City Southern Railway Company
following investigation held on June 21, 2002.
2. That, accordingly, the Kansas City Southern Railway
Company make whole Electrician McCormick as follows:
a. Reinstate him to service with seniority rights
unimpaired;
b. Compensate him for all wages lost at the prevailing
rate of pay of electricians and all applicable
overtime;
c. Make him whole for all vacation rights;
d. Make him whole for all health and welfare, and
insurance benefits;
e. Make him whole for any and all other benefits
including Railroad Retirement and Unemployment
Insurance;
f. Make him whole for any and all benefits that he
would have earned during the time withheld from
service; and
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g. Any record of this arbitrary and unjust disciplinary
action be expunged from his personal 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 employee or employees involved in this dispute
are respectively carrier and employee 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.
By letter dated June 5,
2002,
the Claimant was served notice to appear for a
formal Investigation into allegations that, on June
2, 2002,
he failed to report for
work on his regularly scheduled midnight tour contrary to a directive given him by
supervision; and that he failed to protect his assignment on that night. The parties
mutually agreed to postpone the Investigation, which eventually was held on June
21, 2002.
On July
12, 2002,
the Claimant was advised that he had been found guilty
of violating Rules 1.4, 1.6, and 1.13 of the KCS General Responsibilities, and Rule
1.15 of the KCS Mechanical Department General Responsibilities - both dated May
12, 2000.
Appeals were properly filed and heard on the property. The case is now
before the Board for adjudication.
The Claimant told supervision that he had a court appearance at 8:30 - 9:00
A.M. on June 3,
2002,
shortly after his midnight tour of duty ended. Days before, he
requested of supervision permission to leave work early. He was granted his request
and was told he would be permitted to leave two hours early. At approximately
10:00 P.M., the Claimant began attempting to contact supervision to now approve a
revised request that he be off the entire tour. He finally reached the Diesel Foreman
who advised him to call the Superintendent (of Locomotives). He did call the
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Superintendent who denied his request and instructed him to report for work as
assigned. The Claimant did not comply with this directive, advising the
Superintendent that he would be taking off all night.
Rule 1.4 states:
"Employees must cooperate and assist in carrying out the rules and
instructions. They must promptly report any violations to the
proper supervisor. They must also report any condition or practice
that may threaten the safety of trains, passengers, or employees, and
any misconduct or negligence that may affect the interest of the
railroad."
Rule 1.6 states:
"Employees must not be careless of the safety of themselves or
others, negligent, insubordinate, dishonest, immoral, quarrelsome,
or discourteous. Desertion from duty, making false reports or
statements, concealing facts concerning matters under investigation,
and serious violations of the law are prohibited. Any act of hostility,
misconduct, or willful disregard or negligence affecting the interests
of the company or its employees is sufficient cause for dismissal and
must be reported. Indifference to duty, or to the performance of
duty, will not be condoned."
Rule 1.13 states:
"Employees will report to and comply with instructions from
supervisors who have the proper jurisdiction. Employees will
comply with instructions issued by managers of various departments
when the instructions apply to their duties."
Rule 1.15 states:
"Employees must report for duty at the designated time and place
with the necessary equipment to perform their duties. They must
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spend their time on duty working only for the railroad. Employees
must not leave their assignment, exchange duties, or allow others to
fill their assignment without proper authority."
There is no dispute that the Claimant refused a direct order to report for
work. In support of the Organization's arguments, it offers that the Claimant's
overriding need to be alert for a very important court proceeding outweighed his
responsibility to obey orders and protect his job. The Organization also contends
that the Carrier violated Rule 29, and that, in compliance with Rule 15, the
Claimant fulfilled any responsibility he had by compliance with Rule 15.
Rule 29 states:
"No employee shall be disciplined without a fair hearing by the
Carrier. Suspension in proper cases (the proper case is one where
leaving the man in service pending an investigation would endanger
the employee or his fellow employees), pending a hearing, which
shall be prompt, shall not be deemed a violation of this rule. At a
reasonable time prior to the hearing, such employee and his duly
authorized representative will be apprised of the precise charge and
given reasonable opportunity to secure the presence of necessary
witnesses. If it is found that an employee has been unjustly
suspended or dismissed from service, such employee shall be
reinstated with his seniority rights unimpaired, and compensated for
the wage loss, if any, resulting from said suspension or dismissal."
Rule 15 states:
"In case an employee is unavoidably kept from work, he shall not be
disciplined. An employee detained from work on account of sickness
or any other good cause, shall notify his foreman as early as
possible."
Regarding the Organization's assertion that the Claimant did not receive a
fair and impartial Hearing because there were no specific Rule(s) cited, the Board is
not persuaded. The language contained in the Charging Letter more than
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adequately describes the matters under investigation. There can be no confusion to
the Claimant or his representative(s) about the alleged violation. Likewise, the
Claimant was not disadvantaged in his ability to provide a defense.
Reliance on Rule 15 is also not persuasive. The Claimant cannot hide behind
this Rule to circumvent the basic tenet of obeying orders. This Rule was formulated
to allow management sufficient time to cover a vacancy caused by sickness or other
good reason not to allow employees to absent themselves simply because they
provided notification.
The Organization also claims that there was no mention of the Claimant's
prior record until the final denial on the property and is not appropriate for the
Board to consider. Prior record is an assessment of worth and level of discipline to
be applied, especially where progressive discipline is involved. As such, the Board
does not view this introduction of the Claimant's prior record as problematic.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 16th day of September 2004.