NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20435
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(Southern Pacific-Transportation Company
( (Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7426) that:
(a) The Southern Pacific Transportation Company violated the
current Clerks Agreement when on April 27, 1972, it dismissed Mrs. Lena
Johnson from service on charges of misconduct not proved; and
(b) The Southern Pacific Transportation Company shall now be
required to reinstate Mrs. Lena Johnson to service with seniority and all
other rights unimpaired and to allow her 8 hours compensation at the rate
of her former assignment for April 28, 1972 and each date thereafter until
so reinstated;
(c) For any month in which claim is made for compensation in behalf of the claimant, premium pay
appropriate amounts required under Travelers Group Policy Contract GA-23000,
as amended, for all benefits described therein.
OPINION OF BOARD; On April 5, 1972, while working as Senior Collection
Cleric, Claimant allegedly falsified the reason for her
absence from her assignment for an excessive period of time. The Claimant
was given permission to cash her check on this date; and was absent for
about two hours. The fabrication allegedly took place in an oral report
concerning what caused the delay to Chief Clerk Christie on April 5, 1972;
and was certified as correct by Claimant's signature on a report dated
April 6, 1972.
The Claimant was cited for a formal investigation by letter of
April 10, 1972, concerning possible violation of Rule 801 which reads in
pertinent part:
"Employees will not be retained in service who are ... dishonest..."
As a result of evidence brought forth at the formal investigation of April
14, 1972, the Claimant was dismissed from service on April 27, 1972 for violating Rule 801.
Award Number 20347 Page 2
Docket Nomber CL-20435
It is well established that in discipline claims, such as that
before us, this Board is limited to an examination of the record to ascertain if Carrier had before
and if in the presentation of such evidence the substantive and procedural
rights of the employee were protected.
The record is devoid of evidence that Carrier failed to comply
with the relevant provisions of the applicable agreement concerning procedural safeguards, and thus
Relative to Claimant's substantive rights, it is convincingly
clear that the evidence brought forth at the hearing supports the imposition of discipline.
Concerning the matter of the discipline imposed and the Claimant's
past record, we feel compelled to point out that we are aware and subscribe
to the numerous awards of this Board that hold that an employe must not be
retried or re-penalized for past violations but must be found culpable, on
the basis of substantial evidence, of the instant charge before his or her
past record may be properly considered for the purpose of assessing discipline. As pointed out in th
that the Carrier's finding of guilt was supported by substantial evidence.
The Claimant's past record was discussed on the property and no
challenges as to the accuracy of the Claimant's employment record is to be
found in our record. Excerpts from Claimant's record are as follows:
"1. Successive leaves were granted verbally without
written request as required and instructed, Carrier
losing the services of Claimant for a period September
8, 1970, through May 1, 1971.
2. Unauthorized absenteeism, from records kept by the
Carrier, for the 10-month period May 17, 1971 .through March
23, 1972, amounted to 49 full efght-hour days. When the partial day unauthorized absences of
are added to this, Claimant was gone a total of more than
56 days in 10-months, or approximately one-fourth of the
available working days.
3. In addition to the above unauthorized absences, Claimant
was late to work during the same 10-month period referred to
above 52 occasions for a total amount of time of almost 15
hours, approximating two more days of lost time during the
period.
Award Number 20347 Page 3
Docket Number CL-20435
"4. During the period of May 25, 1971 through September 29,
1971, Claimant was cautioned by her supervisors on seven
different occasions concerning her absenteeism, tardiness,
and many disappearances from her asaignement (not included'
in above statistics) for excessive periods of time without
authority.
All of the above statistics and educational. talks by
supervisors are a part of Claimant's personal record and
were discussed with Petitioner on the property."
The substantial evidence in the record establishing the guilt of
the Claimant for violating Rule 801, coupled with the Claimant's horrendous
past record, makes the assessment of permanent discharge as discipline in
this matter not unreasonable. Accordingly, we must deny the claim in its
entirety.
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, se 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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 31st day of July, 1974.