NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 30051
Docket No. CL-30627
94-3-92-3-397
The Third Division consisted of the regular members and in
addition Referee Robert G. Richter when award was rendered.
(Transportation Communications International
(Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Chesapeake
(and Ohio Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Organization (GL-10808) that:
1. Carrier acted in an arbitrary, capricious and unjust manner when, without just cause, it asse
suspension of ten (10) days actual and an overhead
suspension of one year against Clerk W. G. Rinas,
Jr., on May 18, 1990.
2. As a result of such arbitrary, capricious and unjust action Carrier shall now be required to
and expunge from the record of Clerk W. G. Rinas,
Jr., any and all reference to the 10 days actual
suspension and the one (1) year overhead suspension, forthwith.
3. Carrier shall further be required to compensate
Clerk W. G. Rinas, Jr., for all time lost commencing May 18, 1990 through May 28, 1990."
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 employe 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 established clerical seniority on December 6, 1965.
On December 16, 1976, Claimant was promoted to a non-contact
Form 1 Award No. 30051
Page 2 Docket No. CL-30627
94-3-92-3-397
position with Chessie Computer Systems Incorporated, (CCSI). Under
an agreement Claimant retained his seniority on Seniority District
No. 3 with the Carrier.
Claimant was relieved of his duties at CCSI for alleged misuse
of CCSI equipment and property. Thereafter, Claimant opted to
exercise his clerical seniority with the Carrier.
On April 16, 1990, Claimant was directed to attend an
Investigation on April 23, 1990, to answer the following charges:
"You are hereby charged with misuse of Company
equipment and property and protection of outside business firms while on company time."
After a postponement, the Investigation was held on May 9,
1990. On May 18, 1990, the following letter of discipline was
issued.
"This refers to investigation originally
scheduled to be held on Monday, April 23,
1990, which was postponed pursuant to request
of your representative until May 9, 1990,
wherein you were charged with the misuse of
company equipment, material and property, and
performing functions associated with outside
business firms while on company time.
Based on the evidence developed at this inves
tigation, it is concluded that you are guilty
of the charges placed against you and the
discipline assessed will be actual suspension
from clerical service through the date of May
28, 1990. Further, an overhead suspension of
one year duration is hereby assessed, the
application of which will be withheld unless
there is further cause for discipline during
the one (1) year period commencing on May 29,
1990 in which case you would then be required
to serve actual suspension from service for an
additional period of one (1) year.
In view of the long period of time during
which you misused the resources of CCSI for
matters other than its business and your
devotion of a substantial portion of your work
time in accomplishing other than the company's
work, you are hereby admonished that while
employed by CSXT such activities are strictly
Form 1 Award No. 30051
Page 3 Docket No. CL-30627
94-3-92-3-397
prohibited and should you engage in them at
any time, you will immediately be subject to
further and more severe disciplinary action."
While the record is clear that the Claimant misused equipment
belonging to CCSI and conducted personal business during working
hours, the question before this Board is whether the Carrier can
discipline an employee for his misconduct while not an employee of
the Carrier.
At the time of Claimant's dismissal, CCSI was a CSX Corporate
Service under the
CS
Technology Group. CCSI employees had no union
representation.
It has been
a
long standing procedure in the railroad industry
that employees who are promoted from the ranks retain their
seniority in the craft from which promoted. If such employees were
guilty of misdeeds as a non-covered employee, they could also lose
their seniority in accordance with the procedures of the Agreement.
However, in cases like this, all the actions that resulted in the
discipline happened during the Claimant's employment with CCSI.
No evidence has been introduced in the record that states CCSI
employees were subject to Carrier Rules. CCSI is a separate entity
not subject to the Railway Labor Act. Therefore, it is this
Board's decision that the Claimant cannot be disciplined for
violation of Carrier Rules when such violations did not occur while
Claimant was an employee of the Carrier. The Agreement was
violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Catherine Loughrin
6
/Interim Secretary to the Board
Dated at Chicago, Illinois, this 17th day of February 1994.