NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-24751
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Missouri-Kansas-Texas Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Machine Operator I. W. Brooks for "failure to
follow instructions" on may 15, 1981 was without just and sufficient cause and
wholly disproportionate to the charge leveled against him (System File 400-125).
(2) Machine Operator I. W. Brooks shall be reinstated with seniority
and all other rights unimpaired and he shall be compensated for all wage loss
suffered.
OPINION OF BOARD: Prior to the occurrence giving rise to the dispute herein,
the Claimant was employed by the Carrier as a machine operator,
with a seniority date of May 20, 1978, working under the jurisdiction of Extra
Gang Foreman S. Abernathy and Roadmaster D. J. Bell.
The controversy arose as a result of Claimant's failure to receive his
paycheck when he expected it, his attempt to locate the check; and his alleged
failure to follow instructions of the Roadmaster on the afternoon of may 15,
1981, when he absented himself from duty from approximately 2:00 P. M. to 3:00
P. M., and 3:30 P. M. to 5:00 P. M., at Mile Post 1031, San Antonio, Texas.
On May 22, 1981, Claimant was charged:
"Please arrange to report to the M. K. T. Division
Engineer's Office, 3700 Katy Lane, Waco, Texas, at
10:00 A. M., Tuesday, June 2, 1981, for a formal hearing
to develop the facts and determine your responsibility,
if any, in
connection with
your failure to follow instructions the afternoon of May 15, 1981 when you were absent
from duty from approximately 2:00 P.M. to 3:00 P. M. and
3:30 P.M. to 5:00 P. M., at MP 1031 pole 3 to 5,
San Antonio, Texas.
In this formal hearing, you will be charged with
violation of Rules J and M, parts quoted, of the M-K-T
Lines 'Rules for the Maintenance of Way and Structures,'
effective January 1, 1981, which read as follows:
Rule J. (Part reading) 'Employees must
not be
...
3. Insubordinate
...
6.
Quarrelsome
...'
Award Number 24633
Locket Number MW-24751
"Rule M. (Part reading) 'Dnployees must
report at the appointed time, devote themselves exclusively to their duties,
must not absent themselves, nor exchange
duties with or substitute others in
their place without proper authority
...'
Please be present at the above mentioned time and
place. You may have representation and any such witnesses
you may desire to appear in your behalf."
Page 2
The hearing was postponed and conducted on June 23, 1981. A transcript
of the hearing has been made a part of the record. A review shows that the hearing
was conducted in a fair and impartial manner and that none of Claimant's substantive
procedural rights was violated. Claimant was notified of his dismissal on June
30, 1981.
In the hearing substantial evidence was introduced to support the charge
against Claimant. Severe discipline was warranted; however, permanent dismissal
was excessive. We can readily understand Claimant's anxiety about his paycheck.
The time that Claimant has been out of the service should constitute sufficient
discipline. We will award that he be restored to service with seniority and
other rights unimpaired, but without any compensation for time lost while out of
the service.
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 Bmployes involved in this dispute are respectivel
Carrier and Employe 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
That the discipline was excessive.
A W A R D
Claim sustained in accordance with the Opinioi~.~
NATIONAL RAILROAD
By Order of Third 'vislon
Nanc . Lever - Executive Secretary
Dated at Chicago, Illinois this 30th day of January, 1984
