NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25896
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Missouri-Kansas-Texas Railroad Company
STATEMENT OF CLAIM: ·CZaim of the System Committee of the Brotherhood that:
(1) The dismissal of Section Foreman C. E. Woods for alleged misconduct
on May 23, 24, 25, 26 and 27, 1983, was excessive and disproportinate to the
charges leveled against him (System File 400-85/2579).
(2) The Claimant shall be reinstated with seniority and all other
rights unimpaired and he shall be compensated for all wage loss suffered."
OPINION OF BOARD: The Claimant herein had about twenty years of service
with the Carrier, and at the time of the occurrence giving
rise to the dispute herein, was in charge of a section crew at Brookshire,
Texas, the crew consisting of Claimant and one laborer. On June 13, 1983,
Claimant was notified by the Division Engineer.
"Upon receipt of this letter you are suspended from the service
of the M-K-T Railroad pending hearing. Please arrange to report
to the Division Engineer's Office, Bellmead, Texas, at 11:00 A. M.,
Thursday, June 16, 1983, for a formal hearing to be held to develop
the facts and determine your responsibility, if any, in
connection
with your alleged failure to wear your safety helmet on May 23,
24 and 25, 1983, as instructed, and your alleged failure to devote
yourself exclusively to your duties during assigned working hours
May 23, 24, 25, 26 and 27, 1983, when you apparently left company
property numerous times for unknown reasons and during this same
period of time accomplished very little or no constructive work
for the M-K-T as most of your assigned working hours were spent
in the Brookshire Depot, sitting on your motor car, or carrying
on conversations with passers-by. You are also charged with alleged
falsification of payroll records in which you claimed eight (8)
hours worked each day for the period of May 23rd through May 27th,
1983, when in fact, you apparently left company property during
the day for unknown reasons and left company property before 5:00
P. M. each of these days.
In this formal hearing you will be charged with violations of
Rules J (part reading) and M (part reading of 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
(4) Dishonest...'
Award Number 25858 Page 2
Docket Number MW-25896
Rule M (part reading)... 'Employees must report at the appointed
time, devote themselves exclusively to their duties, must
not be absent themselves (sic) 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.'
Formal hearing was conducted as scheduled on June 16, 1983,
and a copy of the transcript of the hearing has been made a part of the
record. On June 24, 1983, Claimant was dismissed from service.
It was developed in the hearing, or investigation, that during
the week of May 23 through May 27, 1983, Claimant and the laborer were
observed by the Maintenance Engineer of the Carrier, who made practically
a minute-by-minute report of his observation of Claimant and the laborer.
The report of the Maintenance Engineer was presented at the hearing, or
investigation, and he was present as a witness.
From our review, we find that none of Claimant's substantive
procedural rights was violated in the manner in which the hearing, or
investigation, was conducted. There was substantial evidence that the
members of Claimant's two-man crew were not performing work in the
manner in which it should have been performed, and that there was considerable
'goofing off' by the foreman and the laborer. Severe discipline was
warranted, but considering Claimant's years of service, we find and
hold that permanent dismissal was excessive. The time that Claimant
has been out of service should constitute sufficient discipline. 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.
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 discipline imposed was excessive.
Award Number 25858 Page 3
Docket Number MW-25896
A W A R D
Claim sustained in accordance with opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
r
Nancy J er - Executive Secretary
Dated at Chicago, Illinois this 30th day of January 1986.