PUBLIC LAW BOARD N0. 2439
Award No. 83
Case No. 83
PARTIES Southern Pacific Transportation Company
TO and
DIYUTE Brotherhood of Maintenance of Way Employes
STATEMENT "That the Carrier's decision to suspend Welder, Mr. A.
Ur_=M Santa Cruz, from from its service for a period of
forty-five (45) days was unduly harsh, in abuse of dis
cretion and in violation of the current agreement.
That Claimant A. Santa Cruz be compensated for all wage
loss and his record be cleared of all charges."
FINDINGS
Upon the whole record, after hearing, the Board finds that the parties herein
are Carrier and Employees within the meaning of the Railway Labor Act, as
amended, and that this Board is duly constituted under Public Law 89-456 and
has jurisdiction of the parties and the subject matter.
Claimant here, a welder on a welding gang located in Arizona, on April 5, 1984,
at 7:30 P.M., .informed his immediate supervisor the Welding Foreman that he was
tired and unable to continue to work and was returning to his motel for a rest.
He had been working at that time since seven that morning and for twenty-six
consecutive days without a rest day. Claimant returned to work on Sunday, April 8,
1984, at which time he was removed from service and subsequently, by letter dated
April 12, was charged with being absent without authority and insubordination.
Following an investigatory hearing which although originally scheduled for April
30, 1984, was scheduled on May 8 in order to allow claimant time to arrange for
representation, he was found to be guilty of the charges in his responsibility for
failing to comply with the direct order of his supervisor and absenting himself
without proper authority. By letter dated May 21, 1984, claimant was thereupon
suspended from service for a period of forty-five days, the suspension to
commence with the first day he lost from work. He returned to work on May 22,
1984.
PLB-2439 - 2 - Award No. 83
Petitioner argues that claimant was in imperative need of rest and was exhausted
at the time that he told his supervisor he was leaving work. The entire situation,
according to Petitioner, was caused by Carrier arbitrarily changing the assigned
hours of the particular gang by forcing the group to work a fourteen-work-day
week,-thereafter followed by seven days rest. In this instance, the claimant had
worked for a total of twenty-six consecutive days with a large percentage of the
days of over sixteen hours each. On the day in question he had worked twelve
hours. The Organization argues that the penalty assessed was without merit and
should be reversed.
Carrier, on the other hand, indicates that it is clear that the record reveals that
claimant walked off the job without authority. It is also asserted that the Foreman
told the claimant to stay on the job and that he was needed. Carrier argues that
it is impossible to permit employees to pick and choose when they will work and
at what time they must retire from working. The action of the claimant in this
instance in defying the work orders of his Foreman and subsequently absenting himself without authority warranted the discipline assessed.
It is the Board's view that claimant clearly violated the rules of Carrier by leaving work without authority on the day in question. However, it is also apparent
that the particular circumstances in this situation warranted some action on his
part due to his physical exhaustion which is not rebuttable. On balance, although
claimant's actions are clearly beyond the pale of reasonable Management prerogative
and employee reaction, it is clear that the discipline- assessed in this instance
was disproportionate to the offense. Under the circumstances of this particular case,
therefore, the discipl'ine shall be reduced to a fifteen-day suspension and claimant
will be made whole for the difference in the forty-five day to fifteen-day suspension, or paid for thirty days that he was out of work.
AWARD
.Claim sustained in part; the penalty shall be reduced to
a fifteen-day suspension and claimant made whole for all
losses in excess of those days.
PLB-2439
ORDER
~L. Scherling, Carrier tuber
San Francisco, California
August?7, 1985
Carrier will comply with the award herein within
thirty (30) days from the date hereof.
. Lieberman, Neutral-Chairman
Award No. 83
2;~
C. Foose,
Employee Member