(Brotherhood of Maintenance of Way Employer PARTIES TO DISPUTE:

                  (Southern Pacific Transportation company

                  ((Texas and Louisiana Lines)


    STA=IrMIT OF CIIAM:"Claim of the System Cocmittee of the Brotherhood that:


(1) ?'he dismissal of Ajprentice .Tore=2n Mark C. Pollar- has without just and sufficiedt cause (System File :·7i-79-37).

 (2) Mark C. Pollard shall be reinstated as an apprentice foreman with seniority, vacation and all other rights unimpaired and. he shall be compensated for all wage l
OPIifION OF 30ARD: `..:r. M. C. Pollard, the Claimant, was employed by the
 Carrier on September 10, 1976, immediately prior to the incident involved here, he was assigned as an Apprentice Foreman on ryctra Gang No. 222. On January 17, 1979, the Carrier addressed a letter to Claimant, charging him as follows:

          "You have been absent without authority since January 2, 1979. This is in violation of Rule

          M81a of the rules and revalations of the Southern'

          Paciric Transportation Coapam7y as posted by General

          Notice., effective April 1, 19'T8. Rule M810 is

          quoted in Part as follows:


_- __ , ,Znployes must report for duty at the
                  prescribed time and place . . . . They

                  must not absent themselves Cr9m their

                  employment without proper authority . . .


                  Continued failure by employes to protect their employment shall be sufficient cause for dismissal . . .


          You are dismissed from the service of the Southern Pacific Transportation Company for your violation of Rule M810. Please return all company property which is in your possession to Roadmaster J. W. Duke at 1314 Semmes Street. Houston, Texas."

                    I

                    ~·;ard ;-ccer 23123 __= 2

                  DOCK°_t fi=ber :.Lr1-2232


Claimant requested and was granted a hearing in accordance with the provisions of Article 14 of the Agreement between the parties on February 14, 1979. He was represented by a duly accredited representative, his General Chairman. A copy of the transcript was made a r.rt of the record. A careful study of the transcript reveals Claimant was given a fair and impartial hearing.

 The record is clear, Claimant was absent without authority from his assigned position during the period in question, but he contended throughout the earing t7at he 77as absent "because he was in fear of ^:...

 Claimant in his defense contended threats on his life commenced on MAY 15, 1978, apparently when he was advanced to the position of Apprentice Foreman, while assigned to Extra Gang No. 64. He testified the threats were made in the presence of Foreman Reyes, Assistant Roadmaster Morrow and 'oadmaster Duke, wit:? no action taken. He was, however, transferred to ?xxtra Gang No. 222 but this gang worked in close proximity to Gang No. 64 and the threats continued. He also stated in the hearing that he was threatened in Roadmaster Duke's office and in his presence. None of this testimony was refuted by the Carrier. T:=ere is no testimony or evidence is the record as to the nature of the threats or harrassment, nor by whom. :his Board finds it strange that Carrier would knowingly condone anyone threatening the life or harrassing one of its employes, and for this we fault the Carrier. We subscribe to the Board's wisdom when it said in Award 13799:
        "This Board has never required any working man needlessly to put his life in ,jeopardy as a condition of continuing employment and will not do so here."


The Carrier, in its defense, indicated in the record that it had talked to the employes in Gang No. 64 and offered to allow Claimant to return to a position of labor-driver in that gang but he declined with the statement that he would be under the supervision of an Apprentice Foreman who had been promoted in his absence and who had been directly involved with the harrassment. The record shows he this harrassment but it apparently continued to plague him in his employment.

 In October, 1978, the record indicates, Claimant made a request to transfer to train service, and, during the hearing, in response to a question from his representative if he desired to work in the Maintenance of Way Department, he made the following statement:
                    Award Number 2372_3 Page 3

                    Docket Number ::W-23232


        "It is my desire to have the falsehoods removed from my record in regard to my dismissal and that I be retained in the service of the Southern Pacific Transportation Company under a .status of leave of a until I am transferred as per transfer turned in October 2., 1978."


It is obvious to this Board that Claimant does not wish to return to work in the Maintenance of Way Department and for this reason it would serve no useful purpose to reinstate his seniority in that craft and class. 7e Board, however, awards the restoration of C'laimant's employment relations with the Ca.-ier without seniority and without back pay Inasmuch as he refused to work when o with his record cleared of this charge. This employment relationship shall continue for a period of one year from the date of this Award to enable Claimant to pursue his transfer to another department of the Carrier. This Award shall not operate to affect in any manner Carrier's determination with respect to Claimant's qualifications for employment in other departments, except to consider his application in the same manner as any other employes wi period if Claimant's transfer has not been accepted his employment relations shall be terminated unless Carrier elects to extend it.

        F7ITMINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties xaived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Acts 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.

              Award Number 23123 Page k

              Docket Number h&1-23232

              A W A R D


Claim sustained in accordance with the Opinion.

                  NATIONAL RAILROAD ADJUSTMENT BOARD

                  By Order of Third Division


A717EST: ii7 -l~l.

 Fxecutive Secretary

 Dated at Chicago,, Illinois.. this 15th day of January 1987..

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