Brothcrhoud of Maintenance of Way I mployes ) Division - !BT Rail Confr·rence )
)
An<l )
)
Norfolk Southern Railway Company )
(l;onner Southern Railway c:ompany) )
Case No. 257
Award No. 257
Richard K. Hanft, Chaim-1.,n and Neutml Member
D. M. Pascarella, I mployee kmher
D. I,. Kerby, Carrier l\kmber
"Claim of the System Committee of the Brotherhoo<l that:
·111e Carrier's <liscipline (dismissal) of Mr. J. Stephens, issued by letter dated November 24, 2015, in connection with his alkhrcd failure to protect his assignmc:nt in that while he was assignl'd to the T&S-26 (,ang that was working near l\1ontpclier, Ohio, he was absent from work without authori:t.ation from the proper authority on ( ktober 12. 2015 to Octoht•r 15. 2015 was arbitrary, capricious, unjust, unwarranted, unreasonable, harsh or excessi\'e and without cause (Carrier's File MW-V1\V-15-166-SC-847 SOLi).
As a consel)uence of the ,·iol..,tion rderred to in Part I abo\'e, Claimant J. Stephens shall h1we his dismissal i;et aside with all notations thc.:rcof remo\'cd from all Carrier records and he shall be reinstated and restored all seniority rights and all entitlements to and credit for all fin:1ncial and benefit losses, such ils vacation an<l health insurance benefits occasioned as a result of the
,·iolarion, including: (I) straight time for each regular work day lost and holiday pay for each holiday lost, to bl' paid at the rate of the position assignc.'tl to Claimant at the time of remo\'al from service (this amount is not reduced by e;imings from altl'rnate employml'nt obtained by Claimant while wrungfully removed from sc.:n•ice); (2) any general lump-sum payment or rc.:troactive genernl wage increase provided in any applicahk• agreement that became effecth·c while Claimant was out of scn·ice; (3) overtime pay for lost o\'crtime opportunities basc<l on overtime for any position Claimant coul<l have held during the time Claimant wai; removed from scn·ice, or on o,·ertime paid to any junior cmploye for work Claimant could have.· bid on and pcrfonne<l had Claimant not been removed from sen·ice; and (4) health, <lcntal and vii;ion care
Spl·cial Bo:ird of Adjustment No. 1049
Award No. 257
insurance premiums, deductibll·s and co-pays that he would not have paid had he not been unjustly rcmm·ed from service."
FINDINC rS:
Special Board of Adjustment 1049, upon the whole record and all of the eYidence, finds and holds that Employ,·e and Carrier arc employee and carrier within the meaning of the Railway I,nbor Act, ns amended; and. that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given dul· notice of the hearin thl•reon and did participate therein.
"l'his Award is based on the facts and circumstances of this particul:ir case and shall not serve as a precedent in any other cases.
After thoroughly reviewing :ind considering the record and the parties' presentations, thl· Uo:ird finds that the claim should be disposed of ns follows:
Claimant in this matter was, without any doubt, absent from his job as a Track I .'.\borer on T&S-26 gang without permission on October 12, 13 and 14, 2015. The Orgnni;,;ation argues on Claimnnt's behalf that Claimant cnnnot be held culpable for this failure to protect his position because he was incarcerated on criminal ch:iq., s that were subselJuently dropped. The Organi;,;ation contcnds that it was through no fault of his own that Cl:iimant was unable to report off.
·111e Carrier submits that Clnim.,nt did not report for wmk as scheduled on October 12, 1.3 and 14, 2015 and was not heard from a ain until approximatdy two (2) weeks later. The C.m·ier nvers that it is not obliged to retain indefinitely employees whose attendance is unreliable.
'I 11e Board notes that prior ,\ wards have consistently held that incarcemtion doei ll<>t excuse an Employee's failure to protect his job assignment. Ser 3 NRAB, Award No. 31627, Bf\tWED v. BN (Malin) t1nt!.,I1mrdr1br.1ri11.
What nmy be more gcnnane to the instant matter is the propriety of the disciplim.· that was assessed: dismissal.
'I11e Claimant's disciplinary history includes a Letter of Reprimand issued (l/.'\0/2014, a Twenty-sc\'en (27) day suspension issued just over a year prior to this violation and 11 Sixty (60) dar suspension issued 3/0H/2015.
'lbe Claimant's supervisor testified at the I nn•stigation for C:laim:mt's most recent failure to protect his position that Claimant's habitual attendance problems ha,·e become
Sp,:cial Hoard of Adjustment No. 1049
Awar<l No. 257
a pattern. 'l11eCarrier maintains that it is not obligatL·<l to keep :m cmployL'c in sen •icL· who cannot or will not reliably report for work as assigm·<l.
In the instant case, looking at Claim,'lnt's relatively short tenure coupled with his Jisciplin:,ry record, we can fin<l no miti,..rating cvi<lcncL· that would leaJ us to conclude that the discipline assL·sse<l was arbitrary. capricious or excessive. Accor<lingly, the claim i-.
<lcnicd.
J\war<l:
"l11c claim ii; <lcnicd.
:n,. 'P cr.wµ... 
D. M. Pascarella. Employee Member
Dated at Chicago. Illinois, January 28.2018