NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-22773
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Track Laborer Eugene Luster was without
just or sufficient cause; on the basis of unproven charges; exceedingly
disproportionate to the offense with which charged (System File TRRA
1978-1).
(2) The Carrier shall restore Claimant Luster to service and
extend to him all other benefits and remedies prescribed in Rule 24(d)."
OPINION OF BOARD: Claimant was a regularly assigned Track Laborer
in Carrier's District Gang No. 1, with assigned
hours 7:30 A.M. to 4:00 P. M., Monday through Friday.
On October 13, 1977, he was charged with failure to protect
his assignment, with hearing scheduled for 10:00 A.M., October 25, 1977.
Due to the claimant allegedly not being able to find the location of
the hearing scheduled for October 25, 1977, at the request of the
General Chairman of the Organization, another hearing was scheduled
for 10:00 A. M., November 8, 1977. The hearing was held on November 8
and a copy of the transcript has been made a part of the record.
Claimant was advised of his dismissal from service on November 17, 1977.
From a careful review of the transcript of the hearing and
the submissions of the parties, we find that none of claimant's substantive procedural rights was vi
claimant called the Supervisor on October 4, 1977, and stated that he
had automobile trouble. He was advised by the Supervisor to get his
car fixed. According to the Supervisor, the claimant again called
about 10:00 A. M., on October 5 and said that he had overslept and
that his car still was not fixed. About 4:00 P. M., October 10
claimant reported to the Supervisor to pick up his check. At the
investigation the Supervisor stated in part:
Award Number 22659 Page 2
Docket Number MEW-22773
"Well he called in on the 4th and said he had automobile trouble and I told him to get it fixed and
come on in and the nest morning he called in on the
5th I would say about nine or ten o'clock something
like that and said he overslept and his car still
wasn't repaired and I told him that he was going to
have to get that car fixed or whatever he had to do
and get on in to work and so then I didn't hear any
more from him then until the 10th of the month and
he came out then and got his check about four o'clock
and I asked him where he had been and he said he had
problems and so I notified him then that he was out
of service for failing to protect his job and that
he would be notified when the hearing was to be set."
It is evident from the record that claimant was expected to
work on October 5, 1977, but failed to do so. There is no record that
he worked-or reported to anyone on October 6 and 7, and actually did
not report for work on October 10, but reported only for the purpose
of picking up his check. The claimant did not have permission to be
absent on these dates.
The record also shows that claimant, who entered Carrier's
service on August 23, 1974, had previously been suspended on four
different occasions for failing to protect his assignment, and suspended
on another occasion for being late for work. It is apparent that the
prior discipline did not have the desired effect.
Based on the entire record, the Board finds no proper basis
for interfering with the discipline imposed by the Carrier.
In reaching our decision the Board has not considered any
dates after October 10, 1977, when, as the record shows, the Supervisor
"notified him then that he was out of service."
FINDIMS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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Docket Number MW-22773
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 bas 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 14th day of December 1979.