Illinois Central Gulf Railroad
Award No. 1821Y
v. Docket No. 102
Brotherhood of Maintenance of
Way Employes
STATEMENT OF CLAIM
1. The company violated the agreement when it dismissed D. R. Bird on August
9,
1985,
for charging lodging bills to the company's credit for which he was not entitled on
June 6 and
9, 1985. -
2. The company should now be required to reinstate the claimant with all
seniority unimpaired and to pay him for each day of work he has missed.
OPINION OF THE BOARD
Rule 36 of the Agreement requires the Company to make reasonable effort to
provide suitable lodging following each work day, except for the last day of the work
week for Employees who do not commute to and from their residence and who live more
than forty-five
(45)
miles from the point where the gang completes work. In addition,
certain lodging benefits are mandated for the evening prior to the first day of the work
week if, among other things, the point where the gang begins work on the first work day
of the work week is two hundred (200) miles or more from the Employees residence.
The same rule provides that attempts to defraud the Company of monies under the
rule, or to engage in "sharp practice for the benefit of himself or others," or to falsely
claim benefits is considered a serious violation of the rules and subjects the offender to
permanent dismissal. In addition, certain other rules speak to the general question of
dishonesty, false reports, etc.
The Claimant had listed as his residence Pinckneyville, Illinois which is
approximately sixty (60) miles from Belleville, Illinois where the gang stayed in a motel.
-- --There is no-question that the Claimant was entitled to lodgings under the rule on
Thursday, June 6,
1985,
if said day was a "work day." On that Thursday, the Claimant
reported late to work and was sent away. Nonetheless, he charged the lodging expense
P~.3 2~G~-.ewes
8~
for his room that night to the Company's credit. The Carrier disputes the propriety of
that action because, in this particular case, concerning this particular Employee, June 6
did not follow a "work day" for him.
On Sunday, June 9, 1985, the Claimant returned to a trip from West Virginia, and
that trip consisted of more than two hundred (200) miles. He proceeded to the hotel and
charged his motel room to the Company's credit. The Company asserts a violation since
the Claimant`s residence is only sixty (60) miles from the point of the lodging and the
fact that the Employee drove in excess of two hundred (200) miles is totally immaterial
since he did not proceed from his residence.
The basic facts as stated above are not in dispute, however, the assertion that the
Employee conceded wrongdoing is not agreed to. For instance, the Employee asserts that
June 6 was intended to be a work day and was scheduled as such even though he did not
work. He contends that he did not knowingly do wrong.
The Board reads this dispute as being two separate conflicts. Unquestionably tile
Agreement intends that the individuals receive lodging benefits when they are working
certain distances from their homes and the Agreement uses the term "work days" to
establish entitlement to reimbursement. Our chore is to define "work day" in the context
of the Agreement before us.
Certainly, a "work day" (in the normal sense of the word) is a day when the
Employee is scheduled to work. The fact that he did not do so here results from the fact
that he was late for work and was then sent home. Unquestionably, the Board can
foresee certain circumstances where it would be totally unreasonable for the Employee
to submit a claim when he did not perform work on a scheduled "work day" because
"sharp practices" would be reasonably inferred. At the same time, we can foresee
circumstances of short duration illness where it would be entirely proper, in our view, to
submit a claim for reimbursement even though the Employee did not specifically work on
the day. Once again, we are reluctant to establish an all encompassing rule to be applied
PLB 2366 - Award No. 88
in each individual case. We will give the Claimant the benefit of the doubt in this
particular instance since the Company does have the burden of establishing the case
against the Employee. However, we caution this, and other Employees that each
individual set of circumstances must be viewed whenever a dispute arises in this
context.
We have no hesitancy, however, in upholding the Carrier's contentions concerning
the following Sunday evening. The Employee had listed his residence as Pinckneyville,
Illinois on various records and in fact used that address when checking in. The fact that
he may have been moving from place to place and residing in different areas may have
been of temporary convenience to him but the Carrier need not tolerate a circumstance
where the Employee can change his residence at will in order to take advantage of
contractual provisions. The Employee was bound by the desination of Pinckneyville until
changed in a more formalized manner and accordingly, he was not entitled to the
reimbursement for June 9.
It now becomes our obligation to review the severity of the disciplinary action. '
While certainly we feel that there was Wrongdoing concerning the ninth, and the
Employee's actions clearly constituted a negligence and a disregard for proper
procedures, it is arguable as to whether or not there was a clear showing of a deliberate
dishonesty. In addition, we have sustained the claim concerning June 6. Under those
circumstances, we feel it appropriate to set aside the termination and reinstate the
. Employee to service, but without back pay.
We are compelled to state that the Employee's prior record did not make the
conclusion any easier to reach and this Employee should be aware that he is dangerously
close to taking action which will result in a permanent separation from service.
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PL-8 -z3GC- Awo'
a8
We are also compelled to warn this Employee and other Employees that nothing
contained in this Award should be construed as suggesting that the Board tolerates any
deliberate dishonesty in this area. We are confident that the Carrier will continue to
treat the types of violations asserted herein as violations which should be dealt with
harshly.
FIN DIN GS
The Board, upon consideration of the entire record and all of the evidence finds:
The parties herein are Carrier and Employee within the meaning of the Railway
Labor Act, as
amended.
This Board has jurisdiction over the dispute involved herein.
The parties to said dispute were given due and proper notice of hearing thereon.
AWARD
1. Claim sustained in part and denied in part to the termination is set aside and
the Claimant is restored to service with retention of seniority and other benefits but
without reimbursement for compensation lost during the period of the suspension.
2. Carrier shall comply with this Award within thirty (30) days of the effective
date.
. 5.. ibbins
Carrier Member
/-Joseph . Si kles
man and Ne ral Member
Hugh Harper
Organization Member
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