' PUBLIC LAW BOARD NO. 3558
PARTIES) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE) SOUTHERN PACIFIC TRANSPORTATION COMPANY (EASTERN LINES)
STATEMENT OF CLAIM
:
"Claim on behalf of Machine Operator A. Capelo for reinstatement to his
former position with pay for all time lost, with all seniority, vacation
and all other rights restored, alleging unjustly dismissed."
(MW-83-119/403-9-A)
FINDINGS
:
The Board, after hearing upon the whole record and all the evidence, finds
that the parties herein are Carrier and Employee respectively 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.
While working as a Machine Operator Helper on Thursday, September 15,
1983, Claimant asked his Foreman for permission to be absent the following day,
Friday, September 16, 1983, so that he could go to Carrier offices in search of
his paycheck, which had apparently gone astray. The Foreman advised Claimant
that since he was shorthanded and needed workers, he could not grant the re- -
quested permission. The record also shows that the Claimant and the Foreman
got into a slight argument relative to the reasons for Claimant's check not being
at the work site and as to why Claimant needed to be off the following day in
addition to wanting to look for his paycheck.
In disregard of the Foreman's refusal to permit Claimant to be absent, the
Claimant elected to absent himself both on Friday, September 16, 1983, and on
Monday, September 19, 1983. His conduct was considered by the Carrier to
represent insubordination, a failure to follow instructions, and absenteeism. He
was notified by certified letter under date of September 19, 1983 that he was dismissed from all service with the Carrier.
It is the Carrier's position that the facts as established by the evidence of
record, as further developed at a hearing requested by Claimant, show the following:
"1. That an angry interchange of remarks took place between
Claimant Capelo and Foreman Duckett and Mr. Capelo left
before Mr. Duckett had a chance to explain that he was
attempting to recover Claimant Capelo's check.
2. Claimant Capelo absented himsblf to allegedly find his check
in the face of not having permission to be absent from his
place of employment.
3. Claimant admitted Foreman Duckett had not given him positive
permission to be absent on the day in question."
Award No. 9
PLB No. 3558 - 2 - Case No. 9
The Carrier also submits that if Claimant had a grievance, his remedy lay
in the grievance machinery of Article 15 and not in argumentation and insubordination.
It is the Carrier's further contention that in the light of Claimant's past
disciplinary record, the penalty of discharge in this case was not harsh or unreasonable.
It is the Organization's position that Carrier officers were totally at fault
in putting the Claimant in a positibn that it was essential that he be paid on
September 16, 1983 account a number of personal problems and obligations.
The Organization also maintains that testimony in the transcript "clearly proves
that Mr. Capelo had not received a pay check since August 1, 1983, a period of
seven weeks, and he had requested help from his foreman, apprentice foreman
and production supervisor in locating his check, but no one would assist him,
therefore, he had no choice but to try to locate his pay check on his own."
The Organization also contends that Claimant did in fact notify his Foreman
that he would not be at work on September 16, 1983, having advised the Foreman
during their conversation the afternoon of September 15, 1983 that he was going
to look for his check.
As concerns the question of whether or to what extent the Carrier contributed
to Claimant's actions, there is no doubt that Carrier officers were. to some extent
negligent in not providing for the more prompt payment of compensation due the
Claimant account his restoration to service some time prior to September 15, 1983,
However, it was the unrefuted testimony of the Foreman that on September 15th
he had wanted to tell the Claimant that he would attempt to find the pay check,
but that after he and the Claimant had gotten into "a little argument" the Claimant "went his way" and the Foreman went his way, even though he did continue
to seek to try to locate the. check.
In regard to the question as to whether or not the Claimant had permission
to be off, we think it evident from the record that Claimant did not have such
permission and the mere fact that he had stated he would not be at work Friday
did not constitute proper authority for Claimant to absent himself from work.
In our judgment, there is no doubt that Claimant had wrongfully absented
himself from wbrk and that in the light of his past disciplinary record the Carrier
had proper cause to impose a severe disciplinary penalty. At the same time we
are of the belief that certain extenuating circumstances cast doubt on the propriety of a penalty so severe as permanent discharge from
service. It
will,
therefore, be our finding that Claimant be reinstated to service with seniority
and all other benefits unimpaired, but without compensation for time lost.
AWARD
: '
Claim sustained to the extent set forth in the above Findings.
ORDER
:
The Carrier is directed to make this Award effective within 30 calendar days
of the date set forth below.
' Award No. 9
PLB No. 3558 - 3 - Case No. 9
Robert E. Peterson, Chairman
and Neutral Member
C. B. Goyne, crier Member M. A. Christie, Employee Member
San Antonio, TX
June
K,
1984 '