NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-248;
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Omployes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: 'Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Sectionman E. G. Padilla for alleged 'violation
of General Notice, General Rule B and General Regulation 702 of Form 7908' was
without just and sufficient cause and in violation of the Agreement (System
File 6-23-11-14-55).
(2) Sectionman E. G. Padilla shall now be allowed the benefits
prescribed in the first paragraph of Agreement Rule 48(h)."
OPINION OF BOARD: The claimant was employed as a trackman July 16, 1959.
On August 10, 1981, he was notified to attend
investigation:
*Notice of Hearing
Arrange to report to the District Office Building conference room,
406 West 100 South Street, Salt Lake City, Utah, at 1:00 PM, Friday,
August 21, 1981, for investigation and hearing to develop the facts
and determine responsibility in
connection with
spur allegedly being
absent without authority on July 24 and July 28, 1981.
Your actions in this matter indicate violation of General Notice,
General Rule B and General Regulation 702 of Form 7908, 'Rules
Governing Duties and Deportment of amployes·, effective October 1,
1974, which read as follows:
General Notice (in part)
... 7b enter or remain in the service is an assurance of
willingness to obey the rules. The service demands the
faithful, intelligent and courteous discharge of duty.
General Rule B:
Employes must be conversant with and obey the rules and
special instructions. If in doubt as to their meaning,
they must apply to proper authority of the railroad for an
explanation.
General Regulation 702 (in part):
Employes must report for duty at the designated time and
place ... They must not absent themselves from duty ...
without proper authority.
I
Award Number 24550 Page 2
Locket Number MW-24831
The hearing will be conducted in conformity with Rule 48 of the
Agreement effective January 1, 1973, between the Company and the
Brotherhood of Maintenance of Way Employes, as revised October 1,
1978, and amended effective April 1, 1981, and you are entitled to
representation as provided in that rule.
You may produce such witnesses as you may desire at your own expense.·
Copies of the notice of charge were sent to three representatives of
the Organization. The investigation was postponed at the request of claimant's
representatives to August 24, 1981. Notice of the postponement was mailed to
claimant at his last known address, certified mail. Claimant did not appear
for the investigation scheduled for 1:00 P.M., August 24, 1981, although his
representative was present. The investigation was conducted in absentia,
following which claimant was dismissed from service on August 25, 1981. In the
investigation it was developed that claimant did not report for duty on the two
days mentioned in the letter of charge.
In the handling of the dispute on the property the Organization
contended that claimant did not know when the hearing was scheduled for until
the evening of August 24, 1981; that his former wife signed for the certified
letter, but it was not delivered to him until after the hearing was over.
Contention was
also made that claimant was working in Salt Lake on his regular
assignment on August 24, 1981, but no one notified him when the hearing ues to
be held.
Many awards have been issued upholding discipline where investigations were held in absentia,
investigation in absentia in this case. However, it seems that more could have
been done by representatives of the Organization, or officers of the Carrier,
to be sure that claimant knew of the date and time of the postponed
investigation.
.We note that claimants prior work record was far from satisfactory.
However, under all the circumstances here involved, and considering claimant's
length of service, the Board finds that permanent dismissal for failing to
protect his
assignment on
two days was excessive discipline, and that the time
that claimant has been out of the service should constitute sufficient discipline
for the offense. We will award that claimant be restored to the service, with
seniority and other rights unimpaired, but without any compensation for time
lost while out of the service. Claimant should clearly understand, however,
that the purpose of this award is to give him one last chance to become and
remain a responsible and dependable employe, and that further major infractions
by him may result in the permanent termination of his services.
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;
Award Number 24550 Page 3
Docket Number MW-24831
That this Division of the Adustment Board has jurisdiction over the
dispute involved herein; and
That the discipline was
excessive.
A W A R D
Claim sustained in accordance with the opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 4th day of November, 1983
