NATIONAL RAILROAD AD=TMENT BOARD
TfIRD DIVISION Docket Number SG-20038
Frederick R. Blackwell, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE: (Kansas City Terminal Railway Company
STATEMENT OF CLAIM: Claim of the General Committee of the
Brotherhood of
Railroad Signelmen on the Kansas City Terminal Railway Company:
The dismissal of Mr. C. G. McKay, Traveling Signal Maintainer, wasun,just and Carrier should be
seniority rights and pay him for all time lost from the date his doctor releases
him for work to the date he is reinstated to the position of Traveling Sigml
Maintainer. (Carrier's File: SG-3.72.30)
OPINION OF BOARD: Effective February 11, 1972, claimant was permanently dis
missed from Carrier's service for performing outside work
without Carrier's permission. After hearing on February 9, 1972, Union Station
Building, Kansas City, Missouri, the claimant was found guilty of violating Rule
I of the Carriers rules and regulations which reads as follows:
"I. No employe will engage in other employment without
permission from proper officer, or be allowed to do any
work for himself or for others in working hours, nor in
the shops of the Company, except with the permission of
the head of the department in which he is employed."
The Petitioner attacks the discipline on the grounds that: 1) the dismissal of claimant was unju
claimant did not have permission from a proper officer to perform the outside
work; and 3) Carrier violated claimant's due process rights in that the saw Carrier official preferr
the claimant's own admissions and that Petitioner's due process contention was
not timely raised on the property.
In the record before us, there is no problem of timeliness in respect
to Petitioner's due process contentions; however, neither is there a due process
deficiency in the record. Prior Awards have permitted the placing of multiple
disciplina responsibilities in a single Carrier official (see Third Division
Award 14573, so we shall proceed to consider the case on the merits.
Award Number 19981 Page 2
Docket Number SG-20038
The hearing record shows that, due to a non-work injury to his back,
claimant marked off sick on January 9, 1972. He testified that his doctor
advised him not to do any lifting work until his injury healed and, because his
Carrier duties apparently involved lifting, he took a sales job with a manufacturing concern. On Jan
Security personnel observed claimant at the manufacturing concern; on February
2 they questioned claimant who acknowledged that he was working with the concern
while off his regular job due to the back injury. At the time of this encounter
with the Security personnel, claimant was still marked off sick. In addition
to the foregoing, the hearing record shows that the Hearing Officer asked claimant the following que
"We have information ....that you have been employed full
time with this organization since February 1968. Is this true?"
Claimant denied full time employment but acknowledged that he had worked for the
organization (the manufacturing concern) since February 1968. Nothing in the
record contradicts claimant's denial of full time work with the outside concei...
Claimant also testified that he planned to return to work for ^trrier when his
back injury permitted. All of the foregoing is clearly established by the hear:
testimony. However, the testimony on the issue of permission to perform outside
work, though provided only by claimant, is not so clear and, indeed, is somewhat
contradictory. Claimant at first said that he obtained permission to work for
the outside concern shortly after commencing work there. Subsequently he qualified
this statement by saying that he did not receive permission to work for the specific firm involved,
as probably being recorded in Carrier's files and, contrarily, that "I have nothing
in writing; it .ram just verbal."
?n analyzing the foregoing, and the whole record, we conclude that the
claimant had worked part time for an outside concern for four years. His testimony on the issue of p
and the record affords no basis for disturbing Carrier's disposition of this
issue. Thus, there is substantial evidence to support a finding that claimant
worked part time for four years with an outside concern without Carrier's permission. We are concern
account several factors which cogently militate against the degree of discipline
imposed in this case. First, Carrier did not prove its full charge as stated by
the Hearing Officer, namely, that claimant had worked for the outside concern on
a full time basis for four years. Moreover, the outside work proved by Carrier's
Security personnel was totally irrelevant to the charge; claimant was marked off
sick when this encounter occurred and, thus, Rule I could have no application to
him until his sick status was terminated. Indeed, the claimant's candid acknowledgement of his part
proof of the charge and even here the Carrier made no showing that such work ten'
to interfere with claimant's duties with Carrier.
I
Award fiber
19981 Pap 3
Docket Dumber
SO-20038
It is true that claimant should have obtained Carrier's peradssion
to perform the outside work, or at least have made a proper request for such
permission; also, it is clear that he equivocated on the permission issue in
his hearing testimony. Nonetheless, these negatives, and his admission of
outside part time work, do not warrant the extra= penalty of permanent dismissal. We therefore, on t
excessive and we shall reinstate claimant with seniority rights unimpaired
but with no pay for time lost.
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 Lhis Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
The discipline was excessive.
A W A R D
Claim sustained in accordance with Findings and Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~ ~'
Executive Secretary
Dated at Chicago, Illinois, this 12th day of October
1973.
