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AWARD NO. 484
Case No. 518
PUBLIC LAW BOARD NO. 1582
PARTIES) THE ATCHISON, TOPEKA & SANTA FE RAILWAY CORIPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
1. That the Carrier's decision to remove Kansas Division Truck
Driver V. A. Gomez from service was unjust.
2. That the Carrier now reinstate Claimant Gomez with seniority,
vacation, all benefit rights unimpaired and pay for all wage loss
as a result of investigation held March 1, 1990, continuing, forward
and/or otherwise made whole, because the Carrier did not introduce
substantial, creditable evidence that proved that the Claimant
violated the rules enumerated in their decision, and even if Claim
ant violated the rules enumerated in the decision, permanent removal
from service is extreme and harsh discipline under the circumstances.
FINDINGS: This Public Law Board No. 1582 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation
on February 16, 199-0 in LaJunta, Colorado. The claimant was charged
with leaving work without proper authority on January 20, 1990 in
possible violation of Rules 1000, 1004 and 1007, Safety and General
Rules for All Employees, Form 2629 Std. The investigation was postponed until March 1, 1990.
The claimant testified he worked approximately two and one-half
hours of overtime on Friday evening, January 19 and was instructed
he would have to work on Saturday, January 20. He testified the
foreman had told him on Friday evening he would just work a few
hours on Saturday. He stated he reported to work on January 20.
The claimant then testified that when he reported on Saturday, the
foreman told him they would be working eight hours. The claimant
stated he advised the foreman he would have to leave, and the foreman stated he would have to call Mr. Jones. He further testified
they cleaned switches, some on the main line and some that were
probably out of service.
The claimant admitted the foreman never did release hiin but kept
telling him he would have to call "Jones." The claimant testified
the foreman did not tell him "Yes, he could leave" or didn't tell
him "No, he could not leave."
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Award No. 484
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The claimant testified he left exactly at noon when they broke for
lunch. He testified he told the foreman he had to leave, and the
foreman said he would have to inform "Jones." The claimant stated
he never spoke to Roadmaster Jones on Saturday but hat he expected
to talk to him to tell him about his problems.
The claimant further testified that normally he had given the foreman about a week's notice when he needed to be off work but in this
instance he was unable to do so because he had not expected to work
on Saturday.
Foreman Marquez testified that the claimant and another employee
advised him they were going home, and he told them they were needed
all day, and the claimant replied that this was stupid, it was not
an emergency, and he advised the claimant it must be because they
had been working on overtime. He also testified he stated to.both
men that if they left they would be insubordinate. He stated the
other employee returned to work, but the claimant did not.
The Board has reviewed all the testimony of record and the evidence
submitted by the parties. The claimant has a good record. Under
the circumstances herein termination is too harsh, severe and arbitrary. Employees are not the ones to determine whether the work
needs to be done or not, and therefore some discipline is justified.
The Carrier is directed to reinstate the claimant with seniority and
all other rights unimpaired but without pay for time lost.
AWARD: Claim sustained as per above.
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
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Preston J. Moor e, Chairman
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