Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27009
THIRD DIVISION Docket No. MW-27673
88-3-87-3-131
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The sixty (60) days of suspension imposed upon Track Laborer R.
S. Martinez for alleged violation of Rule 604 was without just and sufficient
cause and in violation of the Agreement (System File MW-86-40/448-51-A).
(2) The claimant's record shall be cleared of the charge leveled
against him and he shall be compensated for all wage loss suffered."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was absent from work for six days. When he attempted to
return to duty he was suspended and cited for an investigation. After the
investigation, he was disciplined with a 60 days' suspension. The Organization seeks to have the dis
to notify Carrier that he would be away from his job and, also, that he had a
legitimate reason for being absent from duty.
We will first examine the issue of being withheld from service pending investigation. The last s
Agreement deals with this matter. It reads:
"They may, however, in serious cases, be held
from service pending such investigation."
Form 1 Award No. 27009
Page 2 Docket No. MW-27673
88-3-87-3-131
There is no question that in serious disciplinary matters Carrier has license
to hold an employee out of service pending his investigation. However, it is
our opinion that being AWOL for six days, by itself, is not the type of
"serious case" contemplated by the Rule.
The act of improperly withholding Claimant from service does not
automatically prejudice the entire investigation, as originally contended by
the Organization. In such situations, by well defined authority, employees
are only entitled to payment for the period improperly suspended. See Third
Division Awards 22934 and 25118. Accordingly, Claimant is entitled to payment
for the work days lost, (less the date of the investigation), between the date
held out of service and the date he was notified of his discipline.
On the merits of the matter, there is no question that Claimant
absented himself without proper authority for six consecutive work days. He
claims that he attempted to phone his supervisors and seek permission to be
absent but he was unable to complete the call. In this regard we note that he
attempted to call but once, on the first date of absence, and this call was
placed from a location nearly 400 miles away from his work site. This conduct
does not indicate that a serious attempt was being made to secure permission
to be absent. In fact, if anything, this single attempted call, occurring
over eight calendar days demonstrates a basic disregard for one's obligation
as an employee to protect his job or secure proper permission to be absent.
Accordingly, discipline for this established instance of AWOL is not inappropriate.
Levels of discipline assessed in such cases cover the complete scope:
warnings, reprimands, brief suspensions, long suspensions and even permanent
dismissal. Obviously many factors are involved. In this case, it was Carrier's judgment that the vio
not substitute our judgment for that of Carrier as to whether circumstances
warranted this level of suspension or something else. The suspension, though,
was retroactive to the date Claimant was charged and initially withheld from
service. Earlier we indicated that during this period Claimant was improperly
withheld from duty and awarded compensation accordingly. Therefore, the 60
day suspension shall be reduced by the number of these days.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
' Nancy 14'er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of April 1988.