Award Number 17514 Docket Number MW-18133 NATIONAL RAILROAD ADJUSTMENT BOARD
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
OPINION OF BOARD: The Organization requested a hearing in regard to Carrier's charges against the four Claimants herein that they walked off their jobs as laborers of a Section Gang at Bowling Green, Mo. on April 2, 1968. The four claimants were present at the hearing.
The facts developed at the hearing reveal that the Section Gang at Bowling Green, Mo. were laying rail on April 2, 1968. Employe Swarthout received permission from his foreman to leave his job on the date in question for physical reasons. Claimants and three other employees left their jobs. It is disputed as to the amount of rain that was falling on the morning in question. Carrier alleges that it was raining lightly at the start of the shift and then had stopped by the time Claimants walked off the job. Fifteen members of the Section Gang remained on the job on said date. It was brought out at the hearing that a Signal Gang, working nearby, continued to work on said date. The Claimants, with the exception of John D. Maylee, were offered reinstatement without back pay by Carrier, but this offer was refused. The Claimants were eventually dismissed from the service of Carrier.
The Organization contends that the Claimants received permission from their foreman to cease work on the day in question due to, heavy rain; that an emergency was not involved and thus poor judgment was used by Carrier in continuing to lay rail in inclement weather; that foreman Silvernail testified that he had heard that Claimant John D. Maylee was ill on said date.
Carrier's position is that it conclusively showed at the hearing that Claimants deserted their jobs without permission; that the weather condition on the date in question did not authorize Claimants to leave their jobs without permission; that Claimant John D. Maylee falsified his employment application, justifying his dismissal; that Claimant John D, Maylee failed to make a request for a hearing in regard to Carrier's additional charge that he falsified his application for employment, thus amounting to an admission of the facts of said charge.
The record clearly discloses that Claimants did not receive Carrier's permission to leave their jobs on the date in question. Claimants did not establish by competent evidence that they were in immediate danger to themselves, property or the public. As was said by this Board in Award No. 14067:
Therefore, we feel that Carrier met its burden of proving Claimants guilty as charged.
In view of the fact that Claimant John D. Maylee failed to make written request for hearing as provided for in the Agreement, on the charge that he falsified his application for employment, and weighing his prior record we will sustain Carrier's penalty of dismissal imposed against him.
Taking into consideration the nature and seriousness of the charge against the other Claimants, we find that the penalty of dismissal assessed against Claimants Charles E. Maylee, W. E. Davis and V. D. Stanford was excessive; and we hereby set aside their dismissal from service, and Carrier is ordered to reinstate said Claimants with accumulated seniority, but without compensation for time lost.
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 respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June E1, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and