C:\MYDOCU~1\SCHEDU~2\3-19910.htm

NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 19910

THIRD DIVISION Docket Number CL-19994

Frederick R. Blackwell, Referee

(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7169) that:

1) Carrier violated the Clerks' Rules Agreement at Chicago, I11. when it failed to notify employe L. R. Grubb in writing of precise charge and the finding of him guilty and suspension from service for 15 days was unfair, unreasonable and not supported by record; therefore the disciplinary action taken was without proper cause and such action was arbitrary, capricious, unfair and unreasonable.

2) Carrier shall be required to clear the record of employe L. R. Grubb and compensate him for all time lost.

3) Carrier shall be required to pay on the total amount claimed in Item 2 above, 77 as interest commencing July 22, 1971 and compounded annually until the claim is paid in full.

OPINION

OF BOARD: Claimant, with seniority date in 1947, is regularly assigned

to a clerk position in Carrier's office at Bensenville, Ill

inois. Following a July 11, 1971 hearing, he was found guilty of failure to

protect his assignment and suspended from actual service for fifteen (15) days.

The Petitioner contends that:

1. Claimant was not given proper written notice of "precise" charge.

2. The evidence developed at the investigation does not sustain the action of the carrier.

3. The Claimant was denied due process when a party other than the Hearing Officer made the decision and assessed discipline.

4. The Employes state they have shown that the record of the Claimant should be cleared and that he plus interest of 7I.

i i

Award Number 19910 Page 2

Docket Number CL-19994

We have considered but find no merit in the procedural issues raised by Petitioner in 1 and 3 above. In respect to 4 above, as interest was not properly raised an the property, we do not regard the interest issue as properly before us; inde its entire case on the contention in 2 above. Therefore, we shall consider the merits of point 2, i.e., was the hearing evidence sufficient to sustain the finding of guilt
The hearing transcript consists of two pages of substantive testimony and a third page containing signatures only. The sole testimony on the cause of Claimant's absence from his assignment was given by claimant, as follows:

"Q16. Mr. Grubb, why didn't you report for work on this day? A. I was sick, shall I elaborate on that -

Quillinan - yes

Saturday, July the 10th, I finished my tour of duty at 3:00 p.m. I went home, mowed the lawn, and then I got sick with a diahhrea stomach flu. I would say that would be in the neighborhood of 8 or 8:30 in the evening. I had taken pepto bismol, and went to bed. I was up a half a dozen times more during the course of the night, getting no rest. So about 4 o'clock in the morning of July 11th, I made a trip to the bathroom. My wife said she was going to call and lay me off. I went back to bed, finally I went to sleep. I did not hear the alarm. My wife called at some time between 7:30 and 8:00 a. m. I did not know anything about that at that time either.

Q.17. Mr. Grubb, do you admit that you failed to protect your assignment at 7:00 a.m. on July the 11th? A. Through no fault of mine, yes."

Petitioner contends that this evidence presented a situation governed by Rule 25(a) which provides that, when an employee is detained from work due to sickness, he shall notify his supervisor "as soon as possible" and shall be regarded as on leave of called as early as 4 a.m., which he failed to do.

On the whole record we must concur with Petitioner. The transcript of the July 11, 1971 hearing simply shows that claimant was sick and that his wife called Carrier at about 8 a.m. The hearing transcript shows that Carrier made no issue of, or offered any evidence on, the contention that claimant should have called in earlier than 8 a.m. Such an issue was raised in a August 11, 1971 appeal hearing on Carrier's disciplinary decision; however, since this was after the hearing record was closed, it cannot be included in our considerations of the dispute. Consequently, in the record before us, there is no evidence to support the finding of guilt and we therefore conclude that Carrier's action was unreason-
able and arbitrary. We shall sustain Parts 1 and 2 of the claim and dismiss ' _ 3

Award Humber 19910 Page 3

Docket Number CL-19994

FINDIMS: The Third Division of the Adjustment Hoard, 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 Adjastment Board has jurisdiction over the dispute involved herein; and

The Agreement was violated, -

A N A B D

Parts 1 and 2 of the claim are sustained; part 3 is dismissed. NATIONAL RAILROAD ADJUSTMENT BOARp By Order of Third Division ATTEST: Executive Secretary Dated at Chicago, Illinois, this 7th day of September 1973. NATIONAL RAILROAD ADJUSTMENT BOARD Award Number 19910 THIRD DIVISION Docket Number CL-19994 Frederick R. Blackwell, Referee (Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7169) that: 1) Carrier violated the Clerks' Rules Agreement at Chicago, I11. when it failed to notify employe L. R. Grubb in writing of precise charge and the finding of him guilty and suspension from service for 15 days was unfair, unreasonable and not supported by record; therefore the disciplinary action taken was without proper cause and such action was arbitrary, capricious, unfair and unreasonable. 2) Carrier shall be required to clear the record of employe L. R. Grubb and compensate him for all time lost. 3) Carrier shall be required to pay on the total amount claimed in Item 2 above, 7% as interest commencing July 22, 1971 and compounded annually until the claim is paid in full. OPINION OF BOARD: Claimant, with seniority date in 1947, is regularly assigned to a clerk position in Carrier's office at Bensenville, Ill inois. Following a July 11, 1971 hearing, he was found guilty of failure to protect his assignment and suspended from actual service for fifteen (15) days. The Petitioner contends that: '1. Claimant was not given proper written notice of "precise" charge. 2. The evidence developed at the investigation does not Sustain the action of the carrier. 3. The Claimant was denied due process when a party other than the Hearing Officer made the decision and assessed discipline. 4. The Employes state they have shown that the record of the Claimant should be cleared and that he plus interest of 7%. ipl .. Award Number 19910 Page 2 Docket Number CL-19994 We have considered but find no merit in the procedural issues raised by Petitioner in 1 and 3 above. In respect to 4 above, as interest was not properly raised on the property, we do not regard the interest issue as properly before us; indeed, its entire case on the contention in 2 above. Therefore, we shall consider the merits of point 2, i.e., was the hearing evidence sufficient to sustain the finding of guilt and ass The hearing transcript consists of two pages of substantive testimony and a third page containing signatures only. The sole testimony on the cause of Claimant's absence from his assignment was given by claimant, as follows: "Q16. Mr. Grubb, why didn't you report for work on this day? A. I was sick, shall I elaborate on that - Quillinan - yes Saturday, July the 10th, I finished my tour of duty at 3:00 p.m. I went home, mowed the lawn, and then I got sick with a diahhrea stomach flu. I would say that would be in the neighborhood of 8 or 8:30 in the evening. I had taken pepto bismol, and went to bed. I was up a half a dozen times more during the course of the night, getting no rest. So about 4 o'clock in the morning of July 11th, I made a trip to the bathroom. My wife said she was going to call and lay me off. I went back to bed, finally I went to sleep. I did not hear the alarm. My wife called at some time between 7:30 and 8:00 a. m. I did not know anything about that at that time either. Q.17. Mr. Grubb, do you admit that you failed to protect your assignment at 7:00 a.m. on July the llth? A. Through no fault of mine, yes." Petitioner contends that this evidence presented a situation governed by Rule 25(a) which provides that, when an employee is detained from work due to sickness, he shall notify his supervisor "as soon as possible" and shall be regarded as on leave of called as early as 4 a.m., which he failed to do. On the whole record we must concur with Petitioner. The transcript of the July 11, 1971 hearing simply shows that claimant was sick and that his wife called Carrier at about 8 a.m. The hearing transcript shows that Carrier made no issue of, or offered any evidence on, the contention that claimant should have called in earlier than 8 a.m. Such an issue was raised in a August 11, 1971 appeal hearing on Carrier's disciplinary decision; however, since this was after the hearing record was closed, it cannot be included in our considerations of the dispute. Consequently, in the record before us, there is no evidence to support the finding of guilt and we therefore conclude that Carrier's action was unreasonable and arbitrary. Award Number 19910 Page 3 Docket Number CL-19994 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 Fhipioyes within the meaning of the Railway Labor Act, as approved June 21, 1934; That this Division of the Adjistment Board has jurisdiction over the dispute involved herein; and The Agreement was violated. A W A B D Parts 1 and 2 of the claim are sustained; part 3 is dismissed. NATIONAL RAILROAD ADJUSTNENT BOARD By Order of Third Division ATTEST ~~~L~/.~~ .: Executive Secretary Dated at Chicago, L711nois, this 7th day ofSeptember 1973.