THIRD DIVISION
(Supplemental)
THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
(Wheeling and Lake Erie District)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the New York, Chicago & St. Louis Railroad (Wheeling and Lake Erie District), that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement by and between the parties to this dispute, effective as to rules February 1, 1952, as to rates February 1, 1951, and as otherwise amended.
D. M. Griffiths, hereinafter referred to as claimant, was, on the date involved, an extra telegrapher working pursuant to the provisions of Rule 24 (Extra Board-Assignment of Extra Employes) of the parties' Agreement. As such he was instructed by the Carrier "to cut in on the telegrapher relief position at Norwalk, Ohio, commencing October 13, 1959, and work the position until further advised."
vacancies at points in his home area which did not involve overnight stays. Homestead, 93rd St., Norwalk and Hartland, mentioned above, are all some distance from his home.
It is the Carrier's position, therefore, that the claimant had no justifiable reason for not protecting the assignment and was, therefore, properly subject to discipline. In view of his past record, which included a 15-day suspension on a similar charge, the discipline assessed was neither arbitrary nor excessive.
The principal argument made by the General Chairman in his handling on the property (see Carrier's Exhibits F, F-1, G-1 and H) revolves around the contention that there was no proof that the claimant was not ill and that he did not receive a fair and impartial hearing.
The latter contention is completely denied by the testimony of the claimant as well as the General Chairman.
The General Chairman's contention that the claimant was incapacitated is similarly without substance. None of his statements stand up in the light of all the evidence produced at the hearing and pointed out by the Carrier.
The evidence is that Claimant worked the 3:00 P. M. shift on October 13, spent that night in his automobile, worked the 11:00 P. M. shift on October 14, and thereafter returned to his home in Cadiz, Ohio, for his two rest days, October 15 and 16. At 11:23 A. M., on the morning of October 16 he sent the following message to Chief Train Dispatcher Counts:
Later that day, at 3:36 P. M., Griffiths, together with his wife, went to the office and sent a telegram, signed by Mrs. Griffiths, as follows:
The following Monday, October 19, Griffiths signed up for unemployment insurance and, that same day, sent a message to Mr. Counts as follows:
On October 21, 1959, Claimant was charged by the Carrier with failing to protect his relief position at Norwalk on October 17, 1959, as instructed. Hearing was held on October 28, 1959.
The Carrier contends that the Claimant failed to protect an assignment as ordered and, therefore, was properly disciplined. It asserts that Griffiths has a history of declining assignments and of laying off assignments, particularly when far from home that he sought to do so in this case, pleading inability to pay, but was refused; and, that he then changed his plea to illness. It argues that testimony at the hearing showed he was not incapacitated, as he alleged, and that his failure to work October 17, 1959, was a simple case of malingering, which was properly penalized.
The Organization asserts that Griffiths acted properly in laying himself off from work on October 17, 1959. It states that he contracted cold on the night of October 13; that he expected to be able to work until he received an automobile repair bill for $22.51 which made it financially impossible for him to report for work; and that shortly thereafter an attack of vomiting and nerves necessitated his second message forcing him to stay away from work. In view of his physical capacity, the Organization concludes, the penalty imposed is improper, and should be expunged from the Claimant's record. 13467-19 101.3
This claim lacks merit. Griffiths properly sought to be released from his commitment to cover the October 17 position, but was denied in his request. What does appear to be improper is his rapid change of reason for seeking to lay off. It is possible that his personal health so deteriorated in the intervening 3'%z hours that he was legitimately unable to work the following day for physical reasons. But the evidence is so strongly convincing that Griffiths was fabricating a reason for excused absence as to support the Carrier's contention of malingering.
This conclusion is amply supported by Griffiths' testimony. He sent the first message himself, yet acknowledged that he told his wife what to put on the second message and had her sign it. Furthermore, though he claimed a sudden worsening of his condition with headaches and vomiting, he was apparently well enough to go out with his wife to send the afternoon message. Although the Carrier did not initiate a medical examination of Griffiths, in view of his own past record, the specific and emphatic denial by Counts of his request for layoff on financial grounds, and the alleged rapid deterioration of his health in the early afternoon, Griffiths would have been prudent to forestall the almost certain challenge of his position by obtaining medical support for his claim of illness. This he did not do.
In view of the foregoing we find that the suspension imposed by the Carrier was proper, and the penalty imposed, in the light of his prior record, was appropriate.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respec tively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and