NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW 24976
Marty E. zusman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation (former Penn
( Central Transportation Company)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The ten (10) days of suspension imposed upon Trackman R. M. Smoogen
for alleged unauthorized absence on May 5, July 17, 18, 24 and 25, 1980 was
improper and in violation of the Agreement (System Locket 625).
(2) The claimants record shall be cleared of the charge leveled
against him and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Claimant R. M. Smoogen was notified to attend a trial to be
held on August 13, 1980. He was charged with unauthorized
absence in violation of the absenteeism agreement, "second offense, dates May 5th,
1980, July 17th, 18th, 24th and 25th, 1980.· The absenteeism agreement reads
in pertinent part:
"1. Maintenance of Way Ernployes absent from work without
permission or legitimate cause shall on the first offense
be served a written notice advising them that unauthorized
absences from work will not be tolerated and could subject
them to discipline.
2. Maintenance of Way Employes who are found guilty of
unauthorized absence from work on the second offense shall
be subject to discipline of up to 10 working days' suspension."
The trial was held as scheduled. Following the trial, claimant received
notice dated September 12, 1980 that he had been found guilty as charged and was
assessed a ten (10) day suspension from service. After appeal by the Organization
on property up to and including the highest Carrier officer designated to hear such
appeals this case is now before the National Railroad Adjustment Board.
A review of the record shows substantial evidence present to indicate
Carrier violation of the absenteeism agreeement. The alleged offense at bar
indicates that in trial testimony Mr. Ramp stated in pertinent part that "Mr.
Smoogen was issued a warning letter on May 6, 1980" and further in the record
that such letter was "entered into the record as evidence." The Board takes
note that the May 6th letter is not in the record and in its absence and considering
its sequential placement assumes that said letter is a written notice as required
in part 1 of the absenteeism agreement for the May 5th absence.
Award Number 24887
Locket Number MW-24976 Page 2
The issue at bar is whether the Claimant can be charged with a violation
of the "second offense, dates May 5th, 1980, July 17th, 18th, 24th and 25th,
1980," since he has already been charged with May 5th as a first offense and
indeed the controlling Agreement in force does not permit the same offense to
be both a warning and incorporated as a part of the basis for a second offense.
The Board rules therefore that the Claimant may not be both warned and reprimanded
with a ten (10) day suspension for the same offense. As such, the written
notice of unauthorized absence should remain a permanent part of the record as
his first offense, but the ten (10) day suspension should be recinded and the
Claimant should be compensated for all wages lost for the ten (10) days for
which he was improperly suspended.
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 Dnployes 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 Agreement was violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy Derrr - Executive Secretary
Dated at Chicago, Illinois, this 28th day of June, 1984