Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27193
THIRD DIVISION Docket No. SG-26832
88-3-85-3-605
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the
Brotherhood of Railroad Signalmen on the Consolidated
Rail Corporation (Conrail):
On behalf of V. V. Kiehl, 070915 Signalman C&S, with headquarters at Project
Trailer, West Fairview, PA.
A. Claim that the Company violated the Current Agreement between Consolidated
Rail Corporation and Brotherhood of Railroad Signalmen, particularly Rules
5-A-1 and 6-A-1(a) when on the date listed below they refused to let V. V.
Kiehl work his established work week of forty (40) hours by suspending him
for the date listed below.
July 17, 1984 7:00 A.M. - 5:30 P.M. 10 hours
B. Claim that since V. V. Kiehl was not allowed to work on the date mentioned
above, that he be paid a total of ten (10) hours at the straight time rate
of pay for his present position which is stated above."
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 had established work hours of 7:00 A.M. to 5:30 P.M. On
July 17, 1984, Claimant called in at approximately 7:30 A.M. to indicate that
he would be late. Carrier denied him permission to work on that day.
Form 1 Award No. 27193
Page 2 Docket No. SG-26832
88-3-85-3-605
The Organization argues that Carrier's suspension of the Claimant's
right to work amounts to discipline. It maintains that the Carrier violated
Rule 6-A-1(a) which reads in pertinent part:
"Except as provided
...,
an employee shall not
be reprimanded, suspended or dismissed from
service without a fair and impartial trial
....
The Carrier argues that Claimant did not advise prior to his assignment that he would be late. C
advertised starting time. It holds that when the Claimant reported late, the
Carrier was under no obligation to allow him to complete the work day. It
further argues that this issue had prior resolution on the property.
The record at bar is very limited by the on-property correspondence.
It only indicates that the Claimant was one half hour late when he called the
Carrier. Arrival at work would have consumed some additional time. There is
nothing in the record to account for his absence at the work site at the
starting time of his assignment or for the Carrier's decision to disallow his
working the remainder of his ten (10) hour day.
Employees must report at scheduled starting time absent advance
approval or exceptional circumstance. Claimant did not have advance approval.
There is no evidence of exceptional circumstance beyond Claimant's control.
Clearly, the Carrier has to maintain control over tardiness.
This Board has carefully reviewed the facts and circumstances of this
case and all of the Awards presented by the parties. We find that this case
differs from past Awards. Herein, there is no evidence that the Carrier had
any prior problem with the tardiness of this Claimant. There is no evidence
that the Carrier had an established rule or had warned the Claimant employees
of the penalty for being late (Third Division Awards 24428, 23294, 22904,
22287, 21598, 8045, 7210). There is no evidence that it was impractical to
use the Claimant at a later time in the day (Third Division Awards 20153,
20274).
Carrier's position that a similar case not pursued to arbitration
sets precedent on the property (System Docket 1452), is challenged herein by
this case at bar. We do not agree with Carrier's position. Our review finds
that said case does not overcome the aforesaid issues. Arguments not raised
on property, including the June 1, 1984 notice, come too late for this Board's
consideration.
Past Awards of this Board have held that where employees were warned
or where lateness resulted in rearranging Carrier's forces, the employee could
be denied the right to work after being late and the Carrier could also
initiate discipline (SBA 894, Award No. 94). We concur with those Awards.
This Board finds no evidence in the instant case that Carrier's
actions were based on established rules which were known by the employees, or
based on circumstances which made it impractical to utilize Claimant due to
his lateness. The Board is constrained to find that the Carrier's action was
unreasonable in determining that Claimant's arrival would not be accepted on _
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Page 3 Docket No. SG-26832
88-3-85-3-605
that date. Carrier's action must be viewed as punitive and disciplinary in
principle. Claimant shall be paid from the time when he could have arrived at
the work site to the end of his shift. Failing Agreement on such time within
sixty (60) days from this Award, Claimant is to be paid for nine (9) hours at
the straight time rate of pay.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT Board
By Order of Third Division
Attest
Nancy J ~ er - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of June 1988.