X368
Award No. 18562
Docket No. CL-19009
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
William M. Edgett,
Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND
STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS
AND STATION EMPLOYES
NORFOLK AND WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System
Committee of
the
Brotherhood (CL-6896) that:
1. The Carrier violated the Clerks' Agreement when on December
24, 1969 it summarily dismissed M. L. Staples, Clerk, Petersburg,
Virginia from service.
2. Clerk M. L. Staples shall now be reinstated to the service of
the Carrier with seniority and all other rights unimpaired.
3. Clerk M. L. Staples shall now be compensated for all wages
and other losses sustained account this summary dismissal.
4. Clerk M. L. Staples' record shall be cleared of all alleged
charges or allegations which may have been recorded thereon as the
result of the alleged violations named therein.
OPINION OF BOARD:
Mr. 114. L. Staples was incarcerated in the County
Jail, Dinwiddie, Virginia from October 4, 1969 to October 6, 1969. Mr. Staples
told his father to mark him off sick and his mother had the Carrier mark him
off sick.
He was dismissed from service by the Carrier "for your responsibility
in connection with making false statements to be absent from duty October
6 and 6, 1969."
The record amply supports
the charge
that Mr. Staples made a false
statement to be absent from duty as charged by the Carrier. Mr. Staples
stated that he told his father to mark him off sick. He alleges that he was
both sick and in jail. However, the withholding of essential information may
also constitute the malting of a false statement. In the instant case Mr.
Staples had an affirmative duty to inform the Carrier of the entire reason
for his absence, to wit, the fact that he was in jail.
The Employe's representative has strongly urged that Mr. Staples did
not
receive a
fair hearing, however a careful review of the record shows this
contention to be without merit. Mr. Staples did receive a fair hearing, one
which was consistent with the requirements of Rule 27 of the Agreement.
The question thus becomes whether the discipline imposed meets the
requirements of the Agreement and the decisions of this Board.
The requirements of the Agreement have been fully met.
This Board, has in a number of discipline cases stated its function as
follows:
"Award No. 12438
The punishment cannot be said to be arbitrary, capricious or
unsupported by the record and in accordance with the broad latitude
given Carriers by this Board, in the matter of assessing discipline,
we will not upset the punishment decided upon the Carrier. (See
Awards 9049, 9862 and 10430.)"
To the same effect the Board has said in Award No. 17154:
"The Board feels that lacking a 'valid reason for disturbing
the discipline imposed, there being no showing that Carrier acted in
an arbitrary or unjust manner * * *,' we will not substitute our
judgment for that of Carrier. (Award 15184). Further we have said:
'Our function in discipline cases is not ' * * to decide the matter
in accord with what we might or might not have done had it been
ours to determine, but to pass upon the question whether without
weighing it,
there is
some substantial evidence to sustain a finding
of guilty. Once that question is decided in the affirmative the penalty
imposed for the violation is a matter which rests in the sound
discretion of the Company and we are not warranted in disturbing
it unless we can say it clearly appears from the record that its
action with respect thereto was so unjust, unreasonable or arbitrary
as to constitute an abuse of that discretion: (Award 503:3, and also
13481)."
The action of the Carrier was not arbitrary or capricious, it is
supported by the record and this Board will not upset it.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
18562 2
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 13th day of May, 1971.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
18562 3