PUBLIC LAW BOARD NO. 3558
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) SOUTHERN PACIFIC TRANSPORTATION CO. (EASTERN LINES)
STATEMENT gZ
"Claim on behalf of Houston Division Laborer
Driver N. J. Noska for all time lost, at
Laborer Driver straight time rate of pay,
beginning September 6, 1985 and continuing
through November 28, 1985 account unjustly
suspended from service." (MW-85-140)
FINDINGS:
The Board, after hearing upon the whole record and all the
evidence, finds that 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; and, the
parties were given due notice of hearing thereon.
By letter dated September 6, 1985, Claimant was directed to
report for formal investigation on a charge that he had left his
job assignment without proper authority at about 12:00 noon on
September 4, 1985, and that when questioned as to his whereabouts
he did not tell the District Manager the truth. The notice of
investigation also stated:. "Further investigation reveals that
you have been operating motor vehicles with an expired drivers
license."
The transcript of hearing reveals that although Claimant may not
have followed what Carrier would describe as the normal procedure
in requesting permission to leave the job, namely, through the
District Manager at Carrier's Englewood Yard, that Claimant had
in fact received the permission of his temporary Foreman to leave
his job assignment, albeit the Foreman had only been assigned to
the Yard for two weeks. In this respect, it was the Foreman's
testimony at the company hearing that his discussion with the
District Manager concerning claimant's absence was as follows:
"Mr. Traylor walked up to me and asked me where was my
truck driver, Noska, and I said that he told me this
morning he had to go to jury duty and I told him OR and
the way I understood, I thought he had told Mr. Traylor
about it. Mr. Traylor said No, he didn't tell him about
it and the next time somebody wanted to be off to go
tell him about it first."
The record also shows that when questioned as to whether it was
his understanding at the time in question that a foreman could
give permission to an employee to be off from work, the Foreman
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PLB 3558 AWARD NO. 39 -
CASE
NO.
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responded to the affirmative. He also attested to it only having
been recently explained to him that a foreman did not have such
authority. In this same connection, the record shows that when
the District Manager inquired of Claimant on the following morn
ing (September 5, 1985) whether he had gained permission to be
off from work from the temporary Foreman, that Claimant had in
fact told him that he had done so.
Turning to the question of whether Claimant was operating a com
pany vehicle without a valid driver's license. It is obvious
that the charge was not specific as to the dates Claimant was al
leged to have been operating motor vehicles with an expired
driver's license or that such circumstance had in fact involved
the operation of company vehicles. Thus, we do not believe the
mere fact that testimony developed at the company hearing to the
effect that Claimant's regular license had been taken away from
him for some prior 90-day period, properly substantiated the
charge of record. Moreover, as the transcript reveals, Claimant
had in fact meantime been issued a temporary driver's permit from
the State of Texas. It had been issued under date of February
24, 1984, or some
le
months prior to the date of charge.
The record failing to support the principal charges against the
Claimant, and the Board finding no support for that portion of
the charge which stated Claimant had been untruthful when ques
tioned about his absence, the claim will be sustained.
Claim sustained.
Robert E. Peterson, Chairman
and Neutral Member
Gcr_
C. B. yne M. A. Christie
CarrierV tuber organization Member
Houston, TX
August 29, 1986
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