.. . So it was common practice even prior to going to the 10:30 close, we never turned customers away just because it was time to close the gate ... . "

"A . . . Jim [the Claimant]'s position that was that he had doubled and that he was going on the law. I explained that he was not regulated by any agency and that I would confirm for his own piece of mind. I also explained that there is never a good reason to turn away a good driver or to be rude in any manner. I asked Jim if he was aware that I made it clear to everyone that we are to extend the gate hours as long as we had a customer and that I would pay the overtime. Jim responded that he understood but the issue was he ran out of hours . . . ."

`°Q. Could you tell us what happened please?

A. That evening I double-shifted. I worked from 6:30 a.m. to 2:30 p.m. and then doubled over on the gate from 2:30 p.m. to 10:30 p.m. The gate is supposed to close at 10:30 p.m. Instructions are if somebody has come in prior to closing, we are to take them in. At twenty-five minutes after 10:00 by that clock out there I left the office to check to make sure nobody was on the property to get locked in because that has happened. During that time, I made the rounds of the lot .... So I got back to the

around the building .... Next one up was the Roadway. He

comes up to the window and says, `I am here to pick up I

said, `No you're not, we are closing. We close at 10:30. I am

getting ready to close the gates now . . . .' He asked to use the

phone. I said, 'The telephone is on the corner of the building,

but I am not going to wait on you, because I am closing the

gates. The phone is across the street at Gold Star Chilli if you

need to use it.'

I did the right thing as far as I was concerned. Now I know, like I said, we have standing orders that if they come in prior to closing, we are to take them in. If I had only worked eight hours, that's straight time, and he was there before 10:30, yes, I would have checked them in and maybe stayed over five minutes or so for them to get off the lot, but at the time I was on sixteen hours, the agreement says you can't make overtime on overtime, you don't stand for overtime after sixteen straight hours, the notices are you close at 10:30 p.m. ... My idea of closing the gates at 10:30 p.m. means I have to be on the other side of the gate to lock it .... 11

Fleet Manager all testified that there are standing verbal instructions that employees are to extend the gate hours if customers are at the gate at closing time. Longoria testified that during his meeting with the Claimant on September 16, 1998, the Claimant "responded that he understood" those instructions. Indeed, in the Claimant's version of the event, the Claimant testified, ". . . we have standing orders that if they come in prior to closing, we are to take them in." Thus, there was an instruction known to the Claimant that if customers are at the gate at closing time, the gate hours are to be extended to accommodate those customers.

The Claimant states that he left the office at 10:25 P.M. to do rounds before closing and at that time there was no one at the gate. According to the Claimant, when he returned to the office at 10:40 P.M., there were two drivers at the gate and he turned them away and would not even allow them to use the Carrier's phone. Therefore (and only considering the Claimant's testimony and not the hearsay evidence offered by the Carrier - the communications from the customers) it is possible that the drivers appeared shortly before or shortly after 10:30 P.M. But the precise time the drivers appeared - whether a few minutes before or after 10:30 P.M. - is really irrelevant. According to the Claimant, if he checked those customers in, it would have taken him an additional "five minutes or so for them to get off the lot." The Claimant then testified that the only reason he did not stay to check the customers in was "I was on sixteen hours, the agreement says you can't make overtime on overtime, you don't stand for overtime after sixteen straight hours, the notices are you close at 10:30 p.m." But, by the Claimant's own testimony, his reliance on how he interpreted the Agreement was irrelevant because he was alread past the 16 hours when he returned to the office at 10:40 P.M. when he states he first saw the drivers. The Claimant's reasons for turning the drivers away therefore do not stand up.

The bottom line is that substantial evidence shows that the Claimant was aware of the Rule that he was to extend the hours at the gate if drivers appeared at closing; the drivers appeared right at closing time (either a few minutes before or after); the Claimant had not yet closed down the facility; the Claimant turned those drivers away and would not even allow them to use the Carrier's phone, thereby causing substantial inconvenience to the drivers and the customers which obviously adversely reflected upon the Carrier; from the Claimant's testimony, all of this could have been avoided if he simply allowed the drivers in for an additional "five

minutes or so for them to get off the lot;" and there was no logical reason for the Claimant to have turned those drivers away. Accommodating those drivers and the Carrier's customers would not have caused the Claimant to remain for a lengthy period of time. It would have, in the Claimant's words, only been "five minutes or so" more. Common sense was simply lacking on the Claimant's part. That lack of common sense by the Claimant reflected poorly upon the Carrier. Substantial evidence supports the Carrier's determination that the Claimant engaged in misconduct.

With respect to the amount of discipline - and particularly given how the Claimant's conduct adversely reflected upon the Carrier and because the Claimant's record shows other discipline (a suspension) for the Claimant's dealings with customers - we find that a 30-day suspension for this kind of misconduct was not arbitrary.

AWARD