NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21505
Robert M. O'Brien, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood,
GL-8020, that:
1. Carrier acted arbitrarily and capriciously and in a
discriminatory manner, violating Rule 15 and other rules of the Agreement, when on November 1
Seacoast Transportation Company, Tampa, Florida.
2. As a consequence, Carrier shall:
(a) Clear service record of A. 0. Baynard of the charge
and any reference in connection therewith.
(b) Promptly restore A. 0. Baynard to duty with seniority,
vacation and other rights unimpaired.
(c) Pay A. 0. Baynard the amount of wages he would have
earned absent the violative act, lass outside earnings.
(d) Pay A. 0. Baynard any amount he incurred for medical
or surgical expenses for himself or dependents to the
extent that such payments would have been paid by Travelers
Insurance Company under Group Policy No. GA-23000 and, in
the event of death of A. 0. Baynard, pay his estate the
amount of life insurance provided for under said policy.
In addition, reimburse him for premium payments he airy have
made in the purchase of substitute health, welfare and life
insurance.
(e) Pay A. 0. Baynard interest at the statutory rate for
the State of Florida for any amounts due under (c) hereof.
Award Number 21990 Page 2
Docket Number CL-21505
OPINION OF BOARD: Following a hearing held on November 5, 1974,
Claimant was dismissed from the Company's service
for his alleged violation of Rule 33 of the Seacoast Operating Manual.
Rule 33 provides that employes shall not be absent from duty without
prior permission. It is the Employes'contention herein that the
Company acted in an arbitrary, capricious and discriminatory manner
when they dismissed Claimant from service effective November 12, 1974.
They therefore request that he be restored to service with all rights
unimpaired, and be compensated for all wages lost as a result of his
unwarranted dismissal.
The Company avers, inter alia, that they are not a carrier
within the meaning of Section 1, First, of the Railway Labor Act, as
amended, and that., accordingly, this Board lacks jurisdiction to
adjudicate the dispute submitted by the Employes. This Board is not
persuaded from the record before us that the Seacoast Transportation
Company is not a carrier within the meaning of the Railway
Labor Act
.
And is any event, it is the National Mediation Board, not this tribunal,
that must make such a determination. The record reflects that Petitioner
has been certified as the duly designated and authorized representative
for purposes of the Railway Labor Act of the craft or class of "Truck
Operators & Helpers" (NMB Certification R-4123). It seems reasonable to
conclude that Railway Labor Act coverage is precedent to such a certification. This sufficiently con
Mediation Board has determined that the Company is a carrier within the
meaning of Section 1, First.
This Board is unable to find from a thorough reading of the
transcript of the November 5, 1974 hearing that Claimant was deprived
of a fair and impartial hearing as asserted by the Employes. While
the District Supervisor did in fact conduct the investigation and
render the discipline, this was consistent with the requirements of
Rule 15 (e).
Rule 33 of the Seacoast Operating Manual states, in clear
and unambiguous language, that employes must not absent themselves
from duty without prior permission. The facts adduced at the November 5,
1974 hearing clearly evince that Claimant had absented himself from
duty subsequent to June 3, 1974 without permission. While he claimed
that he had sustained a nonwork related injury which prevented him
from returning to service, he failed to submit adequate medical
evidence to support this alleged accident as he was requested to do.
Award Number 21990 page 3
Docket Number CL-21505
Although the charge preferred against Claimant has been
proven by substantive evidence of probative value, nonetheless Claimant's
discharge, we hold, was clearly excessive. Accordingly, we order
Claimant restored to service with his seniority unimpaired, provided
he reports to work with the Company within 60 days of the date of
this Award. However, Claimant shall not be entitled to any compensation
or other benefits for the time he has been out of service.
FnYDI1R;S: 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 Agreement was not violated.
A W A R D
Claim disposed of per the Opinion of the Board.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
ATTEST:
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Executive Secretary
Dated at Chicago, Illinois, this 31zt day of March 1978.