PUBLIC LAW BOARD N0. 1838

~' Award No. 15
Case No. MW-CR-77-105
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway, Company

Statement The Brotherhood request that Section Laborer J. W. Walton be
of restored to service of the Norfolk and Western Railway
Claim Company, with vacation, seniority and all other rights
unimpaired and that he be paid for all time lost as a :result
of being dismissed.
Findings The Board, after hearing upon the whole record and all evidence,
finds 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 hearing held.
Claimant was relieved from service as a result of his habitual
absenteeism, the most recent incident being July 12, 1977,
and for his alleged insubordination towards a Supervisor on
July 11, 1977. A formal investigation was held in connection
therewith on August 5, 1977. As a result of that investigation
Carrier concluded that Claimant was guilty as charged. He
was dismissed from service as discipline therefor.
The Board finds that Claimant was accorded a fair hearing
pursuant to Rule 33 - Discipline and Grievances.
The Board also finds that while there was sufficient evidence
adduced to support Carrier's conclusion as to Claimant's
absenteeism, it must conclude that the charge of insubordination

Award No. 15 - 1339 Page 2 was more technical then factual.

The Board further finds that there are circumstances which serve to mitigate the discipline imposed. Claimant had undergone a prolonged period of illness which should have been taken into consideration. The Board will therefore reinstate Claimant with all rights unimpaired but without pay subject to passing of the usual return to service physical examination and that Claimant and his Union Representative meet with Carrier's designated Representative for the purpose of reviewing Claimant's absentee record, Rule 26 of the Maintenance of Way Agreement and Operating Rule 404 in order that Claimant will clearly understand his obligations thereunder. This will accord Claimant his "last chance" opportunity to work for

. Carrier, but to do so he must protect the requirements of his service.

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.
Arnett~ a Member war s, Carrier em er
Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, November 26, 1979.