. s
Award No. 6
`¢- Docket No. 6
PUBLIC LAW BOARD N0. 76
- BROTHERHOOD OF MAINTENANCE OF IYAY
EMPLOYES
VS.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
Roy R. Ray, Referee
STATEMENT OF CLAIM:
1. The Carrier violated the effective Agreement on April 20, 21,
22, of 1966, by failing to inform Extra Gang Laborer John Garcia, in
writing, of the reason why he was not allowed to continue working his
position.
2. Carrier shall now reimburse Extra Gang Laborer John Garcia, in
the amount of 20z hours at his pro rata rate, to compensate him for wages
lost as a result of this violation of the Agreement.
s
OPINION OF BOARD: At the time the present claim arose John Garcia was employed as
as Track Laborer in Extra Gang No. 587 in the vicinity of San Antonio yards. J. E.
Autrey was Foreman of the Gang, but during the week of April 18-22, 1966 he was on
vacation. In his absence the Laborers in his, gang were added temporarily to the
gang of Section Foreman H. L. Harrell. At about 11:30 A.M. on April 20, 1966 Foreman
Harrell criticized Claimant Garcia for the manner in which he was performing his
work. It appears that Harrell had instructed Garcia to do the work in a certain way
and Garcia had not followed instructions. Harrell then told Garcia that if he did
not do what he was told to do he was fired. Garcia inquired whether Mr. Harrell
' wanted him to leave right now arid was told by Harrell that if he could not comply
with instructions he was fired. Garcia remained at the location of the work during
the remainder of the day but was not allowed to perform further work. On Thursday,
- ~L ~ '~ 6 - ra
cwd-(o
April 21 he reported to work at the usual time but Foreman Harrell refused to let him
to to work. The next day, April 22 he again reported for work but was not allowed
to resume his position. In the meantime Garcia contacted.Roadmaster Smith and requested
that he be allowed to return to service. Smith told him that when his regular Foreman
(Autrey) returned from vacation he (Garcia) could return to work. On Monday, April 25,
1966 Autrey did return from vacation and Claimant Garcia resumed his position as
Laborer on Gang number 587.
The Organization contends that Claimant was dismissed from service by
Foreman Harrell on April 20, 1966 and that the' Company violated Article 23, Rule 2
when it failed to notify him in writing of the reason for such action.
Carrier takes the position that the Organization has not proved that
Claimant was dismissed from service in violation of Article 23, Rule 2. On the
contrary it contends that he quit his job after refusing to follow instructions of
the Foreman.
The primary question in the case, is whether Garcia voluntarily quit or was
dismissed or held out of service by the Company. The overwhelming weight of arbitral
authority holds that there is no voluntary quit by reason of an employees refusal to
perform work to which he is assigned. Unless some affirmation of an intent to quit
the job is manifested by the employe the refusal of the employer to let the employe
continue his status constitutes a discharge rather than a,resignation. 24 LA 552,553
(1955, Arbitrator Merrill). See also 8 LA 248 (Arbitrator McCoy) and Elkouri and -
Elkouri, How Arbitration Works, 1960, p.414. We have been referred to no awards
disputing this principle. In the, present case we find no manifestation of an intent
on the part of Garcia to quit the job. All indications are to the contrary. After
the above described verbal altercation at approximately 11:30 A.M. on April 20th
Garcia remained at his work location the rest of the day apparently with the hope
~L3 ~ b- ~.s 1` 6
w
that he would be allowed to resume work. Furthermore, he returned on Thursday,
April 21 and Friday, April 22 and reported for work at the usual hour but was not
allowed to resume his position in Extra Gang 587. It was only after contacting
Roadmaster Smith that he was advised that when Foreman Autrey returned from his
vacation he (Garcia) could go back to work. On the following Monday (April 25) this
happened. Statements from Carrier's own officials support the Organization's position
that Garcia was involuntarily held out of service. In his letter of July 11, 1966
the Division Engineer stated that his investigation revealed that "the fore:_an told "
Garcia if he could not do what he was told to do, then he was fired." A similar
statement is found in the' letter of August 26, 1966 from the Chief Engineer, whose
words were "Investigation of the matter develops that Garcia refused to follow the
instructions of Foreman Harrell; that Mr. Harrell told Garcia that if he intended to
work for him he would have to do what he was told. Garcia inquired whether Mr. Harrell
.,
wanted him to leave 'right now', and was told by Mr. Harrell that if he could not
comply with instructions, he was fired."
In our judgment the evidence in the record clearly shows that Garcia did
not voluntarily quit his job but was in fact removed from service by Foreman Harrell.
This being so it was incumbent upon the Company to comply with the provisions of
Article 23, Rule 2 by giving Claimant a written notice of the reason for its action..
This it failed to do; The purpose of such a notice is to afford the employee an
opportunity, upon request, to have a fair and impartial hearing on the matter.
Carrier's failure to give the proper notice has deprived Claimant of an important right.
He was entitled to a hearing on the question of whether he quit or was fired. Carrier
cannot compel an employe to accept its conclusion that he resigned and escape the
effect of Rule 2. If Carrier's actions here were sanctioned it could by the simple
expedient of finding that an employe had resigned rather than was discharged, no
matter how great the conflicting evidence, remove an employe from the protection
of the Agreement.
We hold that Carrier did violate Article 23, Rule 2 and that the claim
has merit.
A 1V A R D
The Claim is sustained. Carrier is directed to reimburse Garcia in the
amount of 20-1/2 hours at his pro rata rate for the time lost on April 20, 21 and 22,
1966.
Public Law Board No. 76
Roy R. Ray
Neutral Member and Chairman
A. J: Cunningham
U
A. P. Winkel -
EmployeUember Carrier Member
Dallas, Texas
June 19, 1968
- 4 -