NATIONAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION Docket Number MW-23169
(Brotherhood of
Maintenance of
Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Laborer Albert Morehead for alleged
absence 'from duty on December 8, 1978, without authority', was without
just and sufficient cause and arbitrarily and capriciously imposed
(System File MW-79-6-CB).
(2) Laborer Albert Morehead shall be reinstated to his former
position, with pay for time lost and with vacation, seniority and all
other rights unimpaired."
OPINION OF BOARD: Mr. Albert Morehead, the claimant, was employed
by
the Carrier on October
4,
1976 as a laborer.
On December 71, 1978, the Carrier addressed a letter to claimant dismissing
him from service account being absent from duty Friday December 8, 1978,
without authority as required by Rule 810 of Carrier's Rules and Regulations
for the government of Maintenance of Way and Engineering Department employes.
In accordance with the rules of the Agreement between the parties, claimant
requested and was granted a hearing on the charges on December 27, 1978.
A copy of the transcript of the hearing was made a part of the record. On
January 2, 1979, in a letter to claimant Carrier sustained its earlier de
cision of dismissal.
The record is clear that claimant was absent from his employment
on Friday December 8, 1978 without authority. However, the record shows
claimant called Foreman Smith's home between 5:30 and 6:00 AM on that morning
and was informed
by
Smith's mother that he was in bed asleep. Foreman Smith
confirmed the telephone call but stated his mother did not understand what
he wanted. Smith also testified that he left home after the call had been
made to his mother.
Carrier's Rule 810 reads as follows:
"Employes 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 which interferes with
their performance of service with the Company unless
advance written permission is obtained from the proper
officer.
Award Number 23039 Page 2
Docket Number MW-23169
"Continued failure by employes to protect their
employment shall be sufficient cause for dismissal.
"An employe subject to call for duty must not leave
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
concealed, will be considered sleeping."
While the rule clearly requires an employe to obtain authority
prior to being absent, it also obligates his supervisor to be available
to receive such requests. Foreman Smith testified that his mother knew
it was claimant Morehead who called and she should have been advised by
her son that such calls, even at 5:30 in the morning should be given to
him. Claimant can not be held responsible for this failure on the part
of. the foreman.
The record shows claimant has a history of absenteeism. In
his two years of employment he was absent without authority on the following occasions; he was absen
counseled for violation of Rule 810, on May 3, 1977 he was suspended for
being absent on April 29 and May 2nd, he was reinstated on a leniency
basis on May 23, 1977. Two months prior to this incident he was also
suspended for five days for the same offense.
The Hoard, in view of the circumstance prevailing here,
awards reinstatement of claimant with seniority and all other rights
unimpaired. However, his past record calls for the "without back pay"
penalty. This award should be made a part of claimant's personal record.
FINDINGS: The Third Divisicn 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
Award Number 23039 Page
3
Docket Number
MW-23169
That the discipline imposed was excessive.
A W A R D
Claim sustained in accordance with Opinion.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
ATTEST:
dI
Dated at Chicago, Illinois, this 28th day of October 1980.