Public Law Board No. 2363
PARTIES Brotherhood of Maintenance of Way Employes
TO
DISPUTE: and
Louisville and Nashville Railroad Company
STATEMENT The dismissal of Track Repairman T. E. Miller was
OF
CLAIM: without just and sufficient cause, arbitrary and
capricious; he shall be reinstated with seniority
and all other rights unimpaired and compensated for
all wage loss suffered.
FINDINGS: At the time claimant arrived for work on the morning
of February 10, 1981, a light rain was falling in
the area. He informed Foreman England that he would
not work in the rain.
When Mr. England told claimant that he could not let
him off since there was a derailment in the area, claimant said
he did not care what they had, he was not going to work in the
rain. The record indicates that it did rain fairly hard on
February 10, but that the rest of claimant's gang and another
gang worked that day to clear the derailment.
According to claimant he felt ill that morning and
had informed Foreman England that he had a cold. Mr. England
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testified that claimant's appearance did not indicate that he was
ill and that claimant did not inform him that he was sick. Other
witnesses corroborated Mr. England's testimony in that regard.
Claimant testified, however, that he had been ill for several
days prior to February 10, although he had worked on February 9
and reported for duty on February 10.
On the basis of this record, we cannot validly hold
that discipline is unwarranted. It is, however, our conclusion
that such extreme disciplinary action as dismissal is not appropriate under the circumstances of this case. We are not persuaded
that claimant intended to be insubordinate.
AWARD: Claimant to be reinstated with seniority rights un
impaired but without back pay. To be effective
- within 30 days.
Adopted at Jacksonville, Florida, April 21, 1983.
a
Harold M. West n, Chairman
Employe Membe
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