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NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number 23969
THIRD DIVISION Docket Number CL-23746
Josef P. Sirefman, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Baltimore and Ohio Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9277)
that:
(1) Carrier violated Rules of ''the effective Clerk-Telegrapher Agreement
when, on May 10, 1979, it unjustly dismissed Extra Yard Clerk Mr. P. T. Weaver
from service of the Carrier, and
(2) As a result of such impropriety, Mr. P. T. Weaver shall be
reinstated to Carrier's service in accordance with governing Agreement Rule 47.
OPINION OF BOARD: Claimant P. T. Weaver, an Extra Yard Clerk, was charged with
failure to properly protect his assignment on April 4, 1979
on which date he claimed sickness. .A hearing was. held on April 20, 1979 and
Claimant was dismissed from service on May 10, 1979. An appeal hearing was held
on May 30, 1979 and the dismissal was reiterated by the Carrier on June 4, 1979.
A review of the record before this Board establishes that on April 4,
1979, although Claimant was off duty as sick until further notice since March 30th,
he was seen by -a supervisor during shift hours delivering a bindle of newspapers
from a newspaper route vehicle to a pharmacy in his hometown, was aware that he
had been seen, and immediately thereafter called in to the Carrier to say that
perhaps with another night's sleep he might be able to mark up the next morning.
Carrier could reasonably infer from this sequence of events that Claimant was not
so sick on April 4th that he could not report for work. Therefore, there was
substantial evidence to sustain Carrier's decision to discipline Claimant. However,
given Claimant's length of service, the penalty of termination is too severe.
Accordingly, Claimant is to be returned to service but without any back pay and
this discipline is to constitute a last chance warning.
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
Award Number 23969
Docket Number CL-23746
That the discipline was excessive.
A W A R D
Claim sustained to the extent indicated in the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 27th day of August 1982.
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