NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-26042
Referee John W. Gaines
(Brotherhood of Railway, Airline and Steamship Clerks
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-9935) that:
"1. Carrier violated the Agreement Rules, particularly Rule 21,
when under date of February 2, 1984, it dismissed Mr. J. L. Baker from the
service of the Carrier on the basis of a formal hearing held January 26,
1984, and
2. Carrier shall be required to compensate Mr. J. L. Baker for all
time lost as a result of the dismissal and return him to the service of the
Carrier with all rights unimpaired."
OPINION OF BOARD: Claimant was dismissed from service following an
investigative hearing held by Carrier as scheduled.
Carrier's notice of investigation, dated January 20, 1984, and
scheduling the hearing for January 26, 1984, sets out the charge to be
investigated against Claimant as follows: "Your responsibility for your
failure to protect your assignment; specifically, your absence from duty on
Tuesday, January 17, 1984."
Carrier's published instructions on absenting procedures as they
apply to Claimant, a first shift employe, state:
"Employes requesting authority to absent themselves from their
assignment due to personal emergency or illness shall do so by
contacting our Chief Clerk on 547-4371, between the hours of
8:00 a. m. and 8:30 a. m."
The hearing transcript covers 26 numbered pages, and 21 pages
thereof contain some remarks of, or testimony given by, Claimant. He was
affored in the stretch of that period every opportunity to adduce evidence
showing active steps on his part in preparing on January 16 and 17 so as
adequately to protect his work assignment on January 17, 1984, as well as
evidence critical in showing a personal emergency or illness on his part if
he was able to make out such a case.
Indubitably, the Hearing Officer evaluated Claimant's evidence as
insufficient inasmuch as he dismissed Claimant from service by Discipline
Notice dated February 2, 1984. It is the Hearing Officer's function, not
ours, to sift and weigh evidence and observe each witness as to demeanor and
to content as he testifies. The Hearing Officer could reasonably have
concluded that the discipline imposed was proper based on the investigative
hearing transcript, and nothing emerges therefrom which strikes us in any way
as arbitrary or capricious. We will deny the claim.
Award Number 25630 Page 2
Locket Number CL-26042
Two matters of smallness loom large according to the ex parte
submissions.
First, the organization points out that missing one day of work
precipitated a dismissal, that penalty being on its face grossly excessive
and requiring modification. But background facts coupled with that bare fact
materially affect what could otherwise appear as amounting to the drastic
discipline pointed out.
We can always consider the background facts as taken from the prior
record. The Organization's Exhibit No. 7 which is a copy of this employee's
personal record evidences a 15-day suspension in 1982 for his failure to
protect assignment followed, all in 1983, by two successive letters of
Reprimand for instances of the same failure and then discharge for another
instance of the same failure. On January 3, 1984, and under obligation to
improve, Claimant was reinstated to service from that discharge, but
specifically on a probationary basis; within the first two weeks of the 1year probation Claimant, un
absented himself on the day in question which prompted his dismissal.
Claimant's same actions, unabating infractions, were of his own
doing and he allowed them to continue at his peril despite more than adequate
notice, prompting us to conclude that the dismissal was not without a fair
and impartial investigation as mandated by Rule 21 being invoked by the
Organization. In this Division's Award 22240 involving an employee who had
been discharged for failure to protect her assignment we stated:
"...By an agreement dated August 25, 1976 she was reinstated on
a leniency basis with the stipulation that she would be on
probation for one year. That agreement is controlling in this
case (see First Division Award 23025) since the infraction
herein took place less than three months after the signing of
the agreement. Claimant's conditional reinstatement in August
was abrogated by her actions in this matter.'
Second, the expense to Claimant for round trip fare on January
17 between home and cork totalled $2 in carfare on available public transportation. Claimant had run
raise the money on January 16 or 17. Claimant admitted he knew beforehand
the cost was going to be $2 to ride to and from work that morning, but
offered no evidence of any attempt by him to find an alternate means of
getting to work on January 17 or any attempt by him to earn or borrow $2 on
that day or the day before. As somewhat a side issue, Claimant testified he
had phoned Carrier early in the morning and that under Carrier's procedure he
had received oral authorization for his being absent that day. A binding
decision reached on absenteeism from telephoned information would generate
misunderstanding and problems.
Award Number 25630 Page 3
Locket Number CL-26042
It develops under Carrier's actual procedure that nobody in authority
ever approved of Claimant's absence and that, as one outcome of the completed
hearing, it was only then finally proved up that being short of $2 carfare
falls woefully short of being accepted as a valid personal emergency or illness
under the procedure.
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
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
400
Attest:
Nancy J. Dever - Executive Secretary
Dated at Chicago, Illinois, this 19th day of September 1985.