Claimant was employed as a Signalman with a seniority date of July 3, 1968. On May 1, 1995, Claimant was regularly assigned to a Construction-Maintenance Gang with hours of service 8:00 A.M. to 4:00 P.M.
On or about 1:00 P.M.. immediately following lunch, Claimant asked his Foreman for permission to go home, which was granted.
On Ntay 2, 1995, Carrier's Chief Engineer, Maintenance, Signals and Communications, issued Notice of Investigation to Claimant and three other members of the gang "to develop the facts, discover the cause and determine your responsibility, if any, for your alleged failure to protect your employment on May 1, 1995 when you were observed leaving your headquarters point to go home between 1:00 P.M. and 1:30 P.M., without authorization of proper authority."
Investigation was held NJ ay 18, 1995, and a copy of the transcript has been furnished this Board. Claimant, along w ith the three others, were found guilty of the charges and dismissed from service effective May 23, 1995,
The Organization appealed Claimant's dismissal in accordance with the requirements of the Collective Bargaining Agreement, but was unable to obtain satisfactory adjustment. The claim was filed with this Board September 15, 1995, and is properly before this Board for adjudication.
As a matter of information, the other three involved employees subsequently pleaded guilty to the charges, requested leniency and were reinstated in June and July, 1995.
The Board has studied the transcript of the May 18, 1995, Investigation along with the record of handling on the property, and is convinced that Carrier failed to prove its charges of leaving the headquarters without proper authority.
Testimony found in the transcript clearly reveals that Claimant asked his Foreman for permission to go home and that the Foreman granted permission and had him transported from the job site to the headquarters point so he could sign out and leave the property.
The record reveals that Claimant has a health problem of which the Carrier is aware, and that from time to time it is necessary that he be relieved from wont. Form 1 Award No. 32036
Carrier has pointed to Claimant's prior disciplinary record as support of its assessed discipline in this case, but what Carrier conveniently overlooked was the fact that no consideration of prior discipline can be given in the absence of proving the instant charges.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
This Award returns to the Board at the request of the Organization for an interpretation. Award 32036 sustained the claim of E. K. Hubbard for reinstatement to service with his record cleared of all charges and made whole for all time and benefits lost as a result of his dismissal from service.
The Carrier reinstated the Claimant to the Signalmen's Seniority Roster and paid him for time lost during the period of May 23, through August 31, 1995. It did not compensate him for any time subsequent to August 31, 1995, because he filed an application with the Railroad Retirement Board for disability annuity on October 31, 1995. The Railroad Retirement Board certified the Claimant disabled for employment and after a mandatory waiting period of five months (September, October, November, December, 1995, and January 1996) commenced payment of his disability annuity effective February 1, 1996.
The Organization argues that under the terms of the Award, the Carrier must make the Claimant whole for the period of September 1995 through January 1996. The Carrier declined on the grounds that the Claimant was disabled and not available for employment during the said five months.
Award 32036 does not require the Carrier to compensate the Claimant for the period of September 1995 through January 1996, for the reason that his loss of compensation for the period was not caused by his dismissal, but rather by his disability prohibiting him from performing service as a Signalman for the Carrier. Once he was certified disabled for service, the Carrier was relieved of further liability. Page 2
Referee James E. Yost who sat with the Division as a neutral member when Award 32036 was adopted, also participated with the Division in making this Interpretation.