NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21797
Herbert L. Marx, Jr., Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE;
(Consolidated Rail Corporation
( (Former Penn Central Transportation Company)
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STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
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(GL-8182) that: I
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(a) The Carrier violated the Rules Agreement, effective
February 1, 1968, particularly Rule 6-A-1, when it assessed discipline
on L. J. Pappageorge, Chicago, Illinois, in the following cases:
Claim 1 - A reprimand for being unavailable far service
on January 5, 1975.
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Claim 2 - A reprimand for being unavailable for service
on January 6, 1975.
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Claim 3 - A reprimand for being unavailable for service
on January 9, 1975.
Claim 4 - Five days suspension for being unavailable for
service on January 16, 1975.
(b) Claimant Pappageorge's record be cleared of all four
charges brought against him on January 24, 1975.
(c) Claimant Pappageorge be compensated for wage loss sustained
in accordance with the provisions of Rule 6-A-1(h).
OPINION OF BOARD: On the dates involved in these occurrences,
January 5, 6, 9, and 16, 1975, Claimant Pappageorge
was the incumbent of an extra clerk position, Chicago, Illinois. He was
33 years old and had over 13 years' service with the Carrier. On January 24, 1975, Carrier sent Clai
four investigations were scheduled for January 30, 1975, but all were
postponed and eventually held on February 26, 1975.On February 26, 1975,
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Docket Number CL-21797
four notices of discipline were sent Claimant and the following discipline
was assessed:
Claim 1: A reprimand for being unavailable for service
on January 5, 1975,
Claim 2: A reprimand for being unavailable for service
on January 6, 1975.
Claim 3: A reprimand for being unavailable for service
on January 9, 1975.
Claim 4: Five days' suspension for being unavailable for
service on January 16, 1975.
The transcript of each investigation discloses that Claimant
testified that his reason for not working on each date was:
1. On January 5, having worked 32 out of 57 hours, he
refused to work a second tour of duty.
2. On January 6, having worked 48 out of 97 hours, he
refused to work a second tour of duty.
3. On January 9, he refused to accept a call which
conflicted with a prior commitment to be available
for union business (Claimant held official union office).
4. On January 16, having worked 40 out of 73 hours,
including 16 hours on January 13, he refused an
assignment.
Notwithstanding the above defenses for not protecting extra
board service, Claimant was found to be guilty of the charges placed
against him. The transcripts of the four investigations are quite
brief, and little or no evidence is contained therein except the
establishment of the fact that Claimant refused four calls for service
on the dates noted (which Claimant readily admitted) and his proffered
reasons for doing so.
The Board has often held that extra board employes' failure
to accept calls to duty is grounds for discipline. Such discipline,
however, can only be supported when a clear showing is made that the
charged employe did not have a valid reason or that he habitually
exhibited conduct of malingering or avoiding service. No such showing
is made in this case. In the 29-day period covered by the events
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Docket Number CL-21797
giving rise to Claimant's discipline, for example, he was off sick two
days, had no orders or calls to work on two other days, was off on
union business on three days, refused calls on two days, but still
managed to perform service for the Carrier on twenty-eight separate
eight-hour tours of duty.
On the basis of the totality of circumstances herein, the
Board must hold that Carrier abused its discretion in the assessment
of any discipline. The Board will order that the discipline assessed
in each claim be set aside and all references thereto be removed from
Claimant's record.
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 Agreement was violated.
A W A R D
Claims (a), (b), and (c) sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
tgAl- gw1oigmt
Dated at Chicago, Illinois, this 31st day of May 1978.