'y,.~= · PUBLIC LAW BOARD NO. 1838



    Parties Brotherhood of Maintenance of Way Employees

    to and

    Dispute Norfolk and Western Railway Company

    Statement 1. Carrier violated the effective Agreement on July 15, 1976 when it

    of dismissed Section Laborer J. E. Hawkins from Carrier's service.

    Claim:

    2. Claimant shall be restored to service, with vacation, seniority and

    all other rights unimpaired, and paid for all time lost.

    Findings: The Board finds, after hearing upon the whole record and all evidence

    that the parties herein are Carrier and Employee within the meaning of

    the Railway Labor Act, as amended, that this Board is duly constituted by

    Agreement dated March 1, 1976, that it has jurisdiction of the parties and

    the subject matter, and that the parties were given due notice of the hearin

    held.

    Claimant, a Section Laborer, for two (2) years, was dismissed from service

    July 19, 1976 for being habitually late and absent from service without

    permission as required by Agreement Rule 26. The investigation subsequently

    held at Claimant's request, gave no cause for change in the discipline

    imposed.

    Agreement Rule 26 provides:

    "An employee desiring to be absent from service must obtain permission from

    his foreman or the proper officer. An employee detained from work on

    account of sickness or for other unavoidable cause shall notify his foreman

    or the proper officer as early as possible."

    The Board finds that Claimant was given a fair and impartial hearing, and

    that Carrier had proven Claimant's culpability for,being habitually tardy

    and absent from service without the required authoritative permission.

                            -2- Award No. 10 -183$


          However, the Board also finds that there are circumstances herein which serve to mitigate the discipline imposed. Claimant's burdensome family problems.which were the cause of many of the absences complained of,were considered by his immediate supervisors to be "cause" for such absences. Consequently, they should not have been weighted for Claimant's permanent dismissal. Claimant has been off sufficient time to learn and understand his obligations and his responsibility which are due under Rule 26, supra. Therefore, Claimant is reinstated to service without any pay for the time held out of service, subject to his passing the usual return to service physical examination and also to reviewing his service record with the Division Engineer, or his representative, and the General Chairman, or his representative, before resuming duty.

Award: Claim disposed of as per findings.
 Order: Carrier is directed to make this award'effective within thirty (30) days
 of date of issuance'shown below.
 A. J. Cunningham, tmp'pyee Memb r . C. Edwards, Carrier Member
 Arthur T. Van Wart, Chairman
 and Neutral Member

          Issued at Wilmington, Delaware, May 1, 1978.