NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21175
William M. Edgett, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( Texas and Louisiana Lines
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7922) that:
(1) The Carrier violated the current Clerks' Agreement at
Houston, Texas, when on July 30, 1974, it arbitrarily and capriciously
discharged Clerk R. Cheeks from the service of the Southern Pacific Transportation Company, Texas an
cause.
(2) Clerk R. Cheeks be restored to the service of the Southern
Pacific Transportation Company, Texas and Louisiana Lines, with full
seniority, vacation and other employe rights restored unimpaired, paid a
day's pay for July 30, 1974, and each subsequent date thereafter he could
have performed service for the Carrier.
(3)
The Southern Pacific Transportation Company, Texas and
Louisiana Lines, be required to clear Clerk Cheeks' service record of the
charges and discipline assessed in regard to the case at hand.
OPINION CF BOARD: Claimant was dismissed from Carrier's service after
an investigation held to determine whether he had
violated Rule 810, which reads:
"810. Employees must report for duty at the prescribed
time and place, remain at their post of duty, and devote
themselves exclusively to their duties during their tour of
duty. They must not absent themselves from their employment
without proper authority. They must not engage in other
business without permission of the proper officer.
"An employee subject to call for duty must not absent
himself from his usual calling place without notice to those
required to call him.
"Employes must not sleep while on duty. Lying down or
assuming a reclining position, with eyes closed, or eyes covered
or concealed, will be considered sleeping."
Award Number 20909 Page 2
Docket Number CL-21175
The record contains evidence from which Carrier concluded that
Claimant had made a misstatement of fact when he said he was sick during
a period of absence. Review of the record shows that Carrier's finding
was based on evidence which was of a compelling nature. The Hoard has no
grounds upon which it could base a reversal of Carrier's finding.
The Employes have argued a number of defenses with vigor. However, the Hoard agrees with Carrier
is that permission to be absent for sickness becomes an unauthorized
absence when the person who represents that he is sick is not, in fact,
sick. That is the basis of Carrier's action here and, as noted, that
finding is amply supported by the record. Such a finding also disposes
of the employe's argument that Claimant was not given the benefit of
Rule
49.
That Rule is not designed to provide leave for one who misstates
the reason for requesting leave.
Claimant's record of prior offenses was considered by Carrier
for the sole purpose of establishing the proper measure of discipline.
No impropriety is involved in the use of a past record for that limited
purpose.
Based upon the entire record in this case the Hoard has concluded
that the claim mast be Denied.
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 ani Employes within the meaning of the Railway Labor
Act, as approved June 21,
1934;
That this Di~..ision of the Adjustment Hoard has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied:
NATIONAL RAILROAD ADJUSTMEI9T BOARD
By Order of Third Division
ATTEST:
00.0 &
Executive Secretary
Dated at Chicago, Illinois, this 16_h day of January 1976.