AWARD NO. 498
Case No. 532
PUBLIC LAW BOARD NO. 1582
PARTIES) THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
1. Carrier's decision to remove California Division Foreman D.
D. Jones from service, effective June 19, 1990, was unjust.
2. Accordingly, Carrier should be required to reinstate claimant
Jones to service with his seniority rights unimpaired and compensate him for all wages lost from June 19, 1990 forward.
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 investiga=
tion in San Bernardino, California on June 19, 1990. The claimant
was charged with being absent from duty on May 14 through May 18,
1990 without proper authority and failure to comply with the in-'
structions from his Roadmaster on May 19, 1990-to determine the
facts and place responsibility, if any, involving possible violation of Rules 1000 and 1004, Safety and General Rules For All
Employees, October 29, 1989 and Rule 1050, Rules and Instructions
for Maintenance of Way and Structures, October 29, 1989, Form
1015 Std.
Pursuant to the investigation the.claimant was found guilty and
was discharged from the service of the Carrier.
Roadmaster D. S. Guillen, and Relief Assistant Superintendent
during the time in question, testified that the claimant was under
his responsibility. He testified that on Monday, May 14 he received several phone calls that the claimant was not protecting
the foreman's job at Victorville which he had been instructed to
do on a relief basis.
Roadmaster Guillen further testified he determined the claimant
had called Roadmaster Walker on Friday, May 11 and stated he was
going to take an emergency vacation on account of his grandfather's
death and he needed to transport his mother to Minnesota.
Roadmaster Guillen testified that Mr. Walker told the claimant he
would relay the message, which he did on the morning of May 14.
He also testified he discovered Mr. Walker did not give the
claimant permission but simply advised he would relay the message
to the Roadmaster.
· Award No. 498
Page 2
Roadmaster Guillen further testified the claimant did not report
to Victorville.during the week of May 14 through May 18. He
testified he contacted the claimant on May 21 on the mobile radio
and instructed him to furnish documents to support his whereabouts
for-the week of May 14 through May 18, and the claimant stated he
would do so.
Roadmaster Guillen then testified that on May 23 he had another
conversation with the claimant and advised him he needed those
documents, and the claimant told him he did not feel he needed
to supply them. He stated the claimant acknowledged he understood
the need for this documentation, and he advised the claimant he
would give him until May 31 to furnish them. He further testified
he had received no written documents until the time the investiga
tion was held.
Mr. Guillen testified on cross-examination that during the week of,
May 14 the claimant did not contact him or his office which had an
answering machine to record messages.
Max Burrel, Track Supervisor on the Cajon Subdivision, testified
that he heard the conversation between the claimant and Roadmaster
Guillen pertaining to instructions to bring some documents to .
support his whereabouts during that week and heard the claimant
say O.K. He further testified he did not take the information he
received from the claimant as an authorized absence.
Roadmaster Dave Walker testified the claimant called him advising
him of the circumstances that he would be gone, but he stated he
did not give the claimant permission to absent himself from duty
but merely agreed to relay the information the claimant had given
him. Mr. Walker confirmed he could have granted an emergency
leave but did not do so.
' Homer L. Davis, Roadmaster on the San Diego Subdivision, testified
he was home all evening on Friday, May 11, and the claimant did
not call. He stated he did not give the claimant permission to
absent himself from duty.
The Carrier introduced a written statement by Larry Long, Assist
ant Roadmaster. This letter is not necessary for a determination
of the facts in this case. The Union objected to this letter on
the basis they did not have the right of cross examination. A
written letter or a statement may be accepted, but the value
thereof is recognized as not being the same as testimony where
the other party has the right of cross-examination.
The claimant testified that on the week of May 14 he was on
vacation. He stated he called Roadmaster Walker and told him he
had an emergency and needed to take off. He stated he asked Mr.
Walker to call Homer Davis and to put him on vacation, snd he
further asked Mr. Walker to call Mr. Guillen, who he thought was
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Yes.
Award No. 498
Page 3
the Roadmaster up in San Bernardino, and he said: "I will call
them."
The claimant testified he was being singled out when requested to
supply evidence as to where he was during the days in question,
and he told Mr. Guillen that if he would give him a letter stating
that every employee on the Santa Fe Railroad
who
had taken an
emergency vacation had to prove where they were, then he would
come up with the proof.
The claimant made a serious mistake when he went on vacation'without anyone authorizing that vacation. According to his own testimony
Mr. Walker did not authorize him to take his vacation, and the
evidence establishes that no one.else authorized his vacation.
Under the circumstances herein the Roadmaster bad the authority
and the right to require validation of the claimant's whereabouts
during the days in question. Even if he did not have that right,
and the claimant's position was correct, the employee is obligated
to follow the instructions of a supervisor unless such endangers
the safety of the employee or others.
The claimant may have thought he was acting properly. For that
reason, and that reason only, the Board, finds the discipline
assessed is too severe. 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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