Brotherhood of Maintenance of Way Employes ) Di\'ision - !HT Rail Conference )
)
And )
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Norfolk Southern Railway Compnnr )
(I :nrmer Southt.·rn Railway Company) )
C:asc No. 256
Award No. 256
S'l'ATEMF,N'I <W CLr\Jt\1I:
Richard K. Hanft, Chairman nn<l Neutral Member
D. M. Pascarella, 1 �mployee Member
L. Kerby. Carrier Member
"Claim of the System Committee of the Brotherhood that:
·11,e Carrier's <lisciplinl.' (<lismissnQ of Mr. D. Bentler, is....ut.·d hr k·ttcr Jatec.l Dt.·cembcr 1, 2015, in connection with his allej.,te<l failure to protect his assignment in that he was absent without permission on October 19, 2015 anc.1 also failed to follow instructions in failing to provide at least one (I) hour ndvnnct.· notiet.· to i;upcrvision that he would be unable to report to work that same day, <lcspitl.' ha,,ing previouslr bet.·n counsclc:J and instru ctt.·<l to <lo so,
,vas :1rbitrary, capricious, unjust, unwarranted, unreasonable, harsh or t.·xccssive nnd without cause (Carrier's File l\lW-C:N-15-46-LM-864 SOll).
2. As a consc:lJuence of the violntion referred ro in Part 1 nbove, Claimant D. Bentley shall ha\'c his c.lismissal set aside with all notations thereof removed from all Carrier records and he shall be: reinstated and restored nil seniority rights and all entitlements to and credit for all financial and all benefit losses, such as ,·acntion and health insumnce benefits occasiunec.l as a result of the violation, including: (1) straight time: for each regular work day lost and holiday pay for each holiday lost, to be paid at the rate c,f thl· position assigned to Claimant at the time of the remc>l'al from scn·ice (this amount is t1ot reducl·c.l by earnings from alternate employment obtained by ( :Jai111ant while wrongfully rcmcwe<l from sen•ice); (2) any gent.·ml lump-sum payment or retroactive
general wage: increase prm·i<le<l in any applicabk· 11wecmcm that becaml·
effective while Claimant was out of service; (.'>) overtime pay for lost m·ertime opportunities based on overtime fol' any position Claimant could have held during the time Cl:iitmint was removed from scn•icc, or on o\"ertimc paid to
Special Board of "<ijustment 1049
,\wan! No. 256
nny junior cmployc for work Cl:,imant could have bid on and performed had Claimant not b{.-cn rcmm·ed from s<.·rvicc; and (4) health, dental and vision care insurance premiums, deducrihles and co-pays that he would not have paid had he not been unjustly r<.·m1wed from service.,,
FINDINGS:
Special Board of ,\djustmcnt 1048, upon the whole record and all of the {.'Vidcnce, finds and holds that I mployce and Carrier arc employee and carrier within the meaning of th<.· Railway J.-.ibor r\ct, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thcrc..'<>n and did participate then.·in.
This A ward is based on rh<.· facts and circumstances of rhis particuhtr case and shall not serve as a precedent i11 any other c:tscs.
,\ft<.·r thmoughly n.'viewing and considering the record and the parries' presentations, the Uoard finds that the claim should be disposed of as follows:
Claimant in this matter was a machine operator on GG-601 working near Big Stone Gap, Virginia. At rhc time of the alleged ruk·,·iolation, CL-iimant had 11 years' service with the C:irrier. By letter dated October 20, 2015 Claimant was instn1cted to appear at an hwcstiJ.,tation "to detenninc your rcsponsibiliry, if any. in connection with the following: 1.) failure to protect }'our assignment in that you were absent witho\1t permission on October 19, 2015; and 2.) failure to follow instructions in that you failed ro provide at least one (I) hour advance notice to supervision that you would be unable to report to work on Ocrober 19. 2015 despite ha,·ing previously been counseled a11d instructed to do
SC>. n,
'I11at ln\'estigation wns conducred on November 17, 2015. Claimanr did not attend the lnvestiJ.,>ation but his Union Representative did. Upon re\'icw of the record evi<lence, the H<.·aring Officer found Claimant guilty of the charges and informed Claimant by letter dated December 1, 2015 that he was <lismisscd from sen•ice.
The Or inization, in its Claim submission to the Board argues that hl-cause Cfaimant's cdl phone was not working properly, and thus, could not sound an alarm to wake him; and, that he never received a wake-up call from the motel as he had purportedly requested, that the tcchnolohtical failures and failures on the part of others upon whom Claimant justifiably relied should rcm<>\'e Claimant from responsibility for this failure to timely rep<>rt.
While an employee's past sen•ice record has no bearing on the determination of innocence or h''llilt with reg:1rd to th<.· pcndi11g charge, it docs ha,·c influence on the propriety of the discit,line asscsi.ed. ·n1e l oard notes that with regard to this Claimant, he
Special Board of Adjustment 1049
:\ward No. 256
has been counseled fo·e (5) othl·r times and disciplined threc (3) other times for failure to protect his assi 1mcnt. Morl·over, over the ten (111) months just prior to this infraction, Claimant ha<l been reinstated from dismissal only to serve two (2) more separate suspensions for failure to protect his assignment.
'I11ere is no doubt, based on the record before us that Cnrrier established by substantial evidence that Claimant, on ( ktober 19, 2015 failed to protect his assignment and was absent without pl·nnission. Moreo,·er, Clai01:10t <lid not follow the instructi()ns he was issued at his pre,•ious counseling to provide ad,·ance notice to supervision if unable to report for work .
l1urther, the Claimant's service record affords no reason to mitigate the discipline imposed. We c.'ln find no basis to o\'ertum the decision rl che<l on the propcrtr.
,\ WARD
'l11e Claim is denied. IZ1.u1«--;t
ard K. Hanft. Chairman
'{n. & -- -
D. M. Pascarella. Employee Member D. L Kerby. Carrie r Member
Dated al Chicago. Illinois, January 26. 20 I 8