(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Missouri Pacific Railroad Company

1. Carrier violated the Clerks' Rules Agreement when it Eismissed Mrs. Virginia I. Winzen from i 1972, on the basis she was guilty of all charges made, without giving reasonable consideration to the testimony given in the transcript of investigation, and the objectio
2. Carrier's action was arbitrary, harsh and an abuse of discretion.

 3. Carrier shall now be required to reinstate Mrs. Winzen to service with all seniority rights, vacation rights, etc., and compensated for any and all losses sustained beginning November 3, 1972, until returned to service.

 4. Claim to bear a compound interest rate of 1% per month starting with the sixtieth day after d thereafter.

 OPINION OF BOARD: The Claimant's absence from work pn October 13, 1972
 led to charges of being absent from duty without per
 mission, failure to protect her assignment, and being insubordinate in
 connection therewith. Following hearing and findings of guilt, she was
 disciplined by dismissal from service effective November 2, 1972.

 The Employees seek to have the discipline vacated or modified on the grounds that the charge was not sufficiently precise and that the supreme penalty of permanent dismissal was not justified by the infraction and its attendant circums of the charge, so we shall proceed to review the merits of the case.

 The hearing record shows that the October 13 absence was preceded by an exchange of four letters, entered in the hearing record as Exhibits


        1, =, 3, _nd L, ;;nder date of )ccober 5, 1972, the C1ai.mant r.quested a dav·s leave on Dctober 12 "because the company mv husband wor':s =or is paving e. t:ao c1--y - eeting and the wives are avpected to be there," =his request was declined by ·(r, C. T, Pamsey, Office `·Lanager, in a letter dated October 6 and handed to the Claimant at about -:15 p,m. as sne -vas pr.~oaring to go home from work. The following :`onday, in a lettr date" October 9, addressed to :.Ir, :., C. =~erschen, ::anag:.r :,evenue Accounting, t~e Claim or the reason for declination of her request :or a one day leave, :Ir, ':erschen replied on October 12, 1972 =hat the request was declined in view of her prior

        ea:·es of absence '.r '_972 (f:.ve days in August and two in S~ptember) and la order to keco ,..=r work ,u:-rent. T1-a Claimant received this letter >t about 12:20 n,m. on October 12. _1t about !.;25 ,m, on the same day, the Claimant =poke to :._r. Harris, one of '-er supervisors, telling ::im t;iat it -has .-possible cor her to ·,,ork on October 13 as she ha:' to go to her husband's business meeting, ':r, Harris could rot authorize the absence, so he phoned Mr. Ramsey, spoke briefly, and then handed the phone to ,:he C1_,i:.-ai:·_, In this L111C With :.Ir, amsey, -he Claimant acknowied.,ed receipt of the October 12 letter from :r. Kerschen stated that she :.;ould not report for work on October 13, '=he hearing record showed that -he Claimant had been Srantei leave on at least one prior occasion to make a business trip with her husband and that, including vacation, sickness, and during 1972. :here was no evidence that any of these absences -.:ere without permission or c~:;er&mi that aosent__is:q c_icng the 2'+ or so employees -n the C1ai^:ant's aepartment amounted to about 29% accrued to another employee by reason of the Cleimant's absence on that date,


        in appraising these facts and the whole record, we conclude that there is no dispute that the Claimant was absent -without permission on October 13, 1972 and thus, there is no doubt that discipline was warranted. ?de note, though, tha requested leave, as evidenced in the correspondence, were more or less narrowly confined to the Claimant's own personal attendance record and to the importance of her own work. The Carrier's =orrespondence emphasized the Claimant's ;)rior -.eaves of absence and tie need for currency on her o;.m -vor'c. -n contrast, however, the Carrier's Hearing presentation placed emphasis on the high absentee rate of the entire -vork force of the department and ttie need to prev the :ate in puestion, and since the Claimant's decision about ·-orking that date could :·ave been influenced by this reason, we believe the Carrier should :nave _ncluded this reason in its explanation -or -refusing her request for leave 'Ic also note that tae Claimant's absence did not result in overtime pay _, another amploy


. l
                Award Number 20578 Page 3

                Docket Number CL-20434


except for a one day delay in its being performed. We conclude therefore that, while the Claimant's absence from work warranted discipline, the Carrier has failed to properly assess the foregoing mitigating circumstances in determining the quan are properly taken into account, there is no doubt that the discipline of permanent dismissal is unduly harsh and excessive for the infraction in this case of being absent one day without permission. Accordingly, we shall award that the Claimant be returned to service without back pay, but with all other rights unimpaired.

        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 discipline of permanent dismissal -aas excessive.


                      A W A R D


Claim sustained to the extent that the Claimant shall be returned to work with all rights unimpaired but without compensation for back pay.

                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST ~ 1/~~~:
 Executive Secretary

 Dated at Chicago, Illinois, this 17th day of January 1975.

 ri-:~r
                                  Serial No. 280


              NATIONAL RAILROAD ADJUSTMENT BOARD


                    THIRD DIVISION


            INTERPRETATION N0. 1 TO AWARD NO. 20578


                  DOCKET N0 . CL-20434


                NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes


NAME OF CARRIER: Missouri Pacific Railroad Company

 Upon application of the representatives of the Employes involved in the above Award, that this Division interpret the same in light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made:

 After carefully reviewing the petition of the Organization for an Interpretation of Award No. 20578, (CL-20434), and after carefully reviewing Carrier's response t
The subject Award, issued under date of January 17, 1975, vacated the Carrier's permanent dismissal of the Claimant, Mrs. V. Winzen, and re. quired the Carrier to return Claimant Winzen "to work with all rights unimpaired but without compens the Carrier's Director of Labor Relations on January 24, 1975, and the Claimant's date of return to service was February 21, 1975; thus Claimant Winzen was returned to service on the 28th calendar day from the Carrier's receipt of the Award and on the 35th calendar day from the date of the Award.

 ·· The Employees seek to have the Award interpreted so that its application will require the Carrie determining her vacation and sink leave benefits under the Agreement. Thts Employees submit that this first request is justified because the Carrier did not return the Claimant to service within a reasonable period of time, while the second request is justified by the Award's language stating that the Claimant's return to service was to be "with all rights unimpaired but without compensation for back pay."
                      - 2 -


The Employees' first request requires consideration of what period of time is allowed for a Carrier to comply with an Award. On the Third Division, the Board's adoption procedure automatically appends to each monetary award an order date or compliance date which is fixed on the middle or the last calendar date of the month which falls nearest to 60 days from the date of the Award. An award which does not award money, such as the instant Award, contains no compliance date under the Third Division's procedure.

 In the prior handling of this case, the Employees made no request for and the Award did not cont Claimant should be returned to service within a stated period of time. The monetary awards adopted on the date of the instant Award carried an order date of March 15, 1975.

 with regard to an award which requires an employee to be re turned to service, but which does not provide an express compliance provision to govern the date of the re requires that the return be within a reasonable period of time from the date of the award. In determining what is a reasonable time in this case the Third Division procedure must be taken into account, particularly since the Employees did not request a compliance date during the prior adjudication of the dispute. Obviously, the Third Division's procedure would allow a longer period of time for compliance than was actually taken by the Carrier in returning the Claimant to service, and it therefore cannot be said that the Carrier's action ran afoul of the criteria for determining a reasonable time.

 The Employees' second request is that, for vacation and sick leave purposes, the Claimant be treated as not having had her service interrupted in 1973 and 1974 despite the fact that she performed no compensated service in those years, and despite the fact that she was not awarded back pay for those years by Award No. 20578. The phrase "with all rights unimpaired" in that Award refers to rights which existed on the date of the Award by reason of the previous employment relationship. That relationship covers the entirety of the Claimant's wor out-of-service time, and the Claimant's rights under the Award flow from such, history as it actually exists. Award No. 20578 did not intend to rewrite this history, so as to have the Claimant treated for vacation and sick leave purposes as if she had worked uninterruptedly during 1973 and 1974, and indeed such a constructi denial of back pay for those years.

 In view of the foregoing, the Bequest for Interpetation will be dismissed.
 Referee Frederick Blackwell, who sat with the Division, as a neutral member, when Award No. 20578 was adopted, also participated with the Division in making this interpretation.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: -A W, P
        Executive Secretary


Dated at Chicago, Illinois, this 16th day of January 1976.

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