Brotherhood of Maintenance of Way Umployes )
Division - IBT Rail Conference )
)
i\nJ )
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Norfolk Southern Railroad )
Case No. 260
Award No. 260
_(J"orm_er S_o uth_ern
_Railw_ay C_omp _any)_ _ _
_))
Richard 1-.::. Hanft, Chairman and Neutral Member
D. M. Pascarella, Employee Member
D. L. Kerby, Carrier Member
STAT E MENT OF CLAIM :
"Claim of the Syste m Committee of the Brotherhood that:
The Carrier's discipline [ninety (90) day actual suspension J of Mr. T. Blash, issued by letter dated Junc 3, 2014, in connec tion with his alleged co ndu ct unbecoming
an cmployc and marking off under false preten ses on April 14, 2014 when he made false statement s to Carrier Super Yis ion regarding his inability to pro tect his assignment on April 15, 2014 was arbi trary, capricious, un jus t, unwarranted , unreasonable, harsh, or excess ive (System File Blash-T-04-14 / MW-ATLA-14 -16 - LM -213 SOU).
i\s a consequence of the violation referred to in Part 1 above, Claimant T. Blash shall be made whole by exonerating him of all charges placed against him, restoring him to service, paying him for all time lost, with seniority, qualifications, vacation and all other rights unimpaired."
1: TN D TNGS:
Special Board of Adjustment 1049, upo n the whole record and all o f the evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act, 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 thereon and did participate therein.
Special Board of A d justment No. 1049
Award No. 260
This Award is based on the facts and circum stances of this particular case and shall not serve as a precedent in any o ther cases.
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claimant in this matter, the record reveals, on April 14, 2014 asked to be excused from work on the following day, 1\ pr il 15, 2014. As of April 14, 2014, Claimant had exhausted all accrued vacation for the year and just wanted to be off work without comp ensation. He initially requ ested the time off from his immediate supervisor who denied the request due to operational requirements.
Claimant then called the Assistant Division Engineer ("AD E " ) and asked him to override his immediate supervisor's decisio n. The ADE declined to do so and instructed Claimant to report for duty on April 15, 2014.
Claimant did not report for duty o n1\ pril 15, 2014 and as a result was charged with failure to protect bis assignment. When Claimant reported for duty on April 16, 2014, super vision inquired about his absence and Claimant asserted that he was absent on the preceding day due to having to attend a child support hearing. When questioned further, Claimant related that in addition to taking care of child support matters that he had to wall, across the street to the courthouse to be a witness in a case involving his brother being charged with theft by taking. After searching public records on the intern et, Claimant's supervisors discovered that Claimant was in fact himself charged with theft by taking and was at the Henry Co unt y G eo rgia Superior Courthouse to enter a no t guilty plea on his own behalf. Addi tional charges were added for marking off under false pretenses.
After thorough review of the record of the proc eedin gs on the property, the Board determines that the Carrier failed to prove by substantial evidence that Claimant marked o ff unde r false pretenses.
.J ust beca use Claimant was involved in another court proceeding on April 15, 2014, the Carrier failed to prove that the Claimant did not have a meeting concerning his child supp ort obligations on that same day. And, while the Carrier maintains that Claimant never pro duced evidence that he was, indeed, attending to child supp ort matters, Carrier has failed to prove that he wasn' t. It is not for Claimant to prove his innocence, but rath er for Carrier to prove his guilt.
With regard to Claimant's failure to pro tect his position, there is no doubt after review of the record that Claimant requested uncompensated time off that was denied. Claimant, the reco rd shows, nevertheless failed to report for duty on April 15, 2014. T hat charge was prove n by credible evidence and must stand.
:-pcci:al l\o.m· l of ,\ tljll!,tnll' llf No. I041J
Award o. 2<,0
Si11ce th<.· d 1:1rsc of fai.lur<.· to protect lus pos1t1011 1v:1spro,•<.·n. Lut th<.· ch : ug<· of
m:irkin off unJcr false prcren:,c:, wn:.. 110 1, the: Bn:ml i:, o bl i e J to consider the pen:tlf}'
:1s:..csse <l.
C L1im:1n1, within the four (4) months prior m the ch:ir ci- hen·unc..lcr consic.kratann rcc t·ivci.l :1 I A' ttc r of Cuun!>t:I o n December U. 20 I.\: :a tl'll ( JO) d:ly :tCtti;tl :..uspt:mion for 1\ b en tc<·.i:,m on D<.-.:embcr 20. 2(113: :i rnirry (.>0) 1..l:ty Jd<.-rn:<l su :..pc n Mon for Failure to
\>rn trct his Positio n o\\ J:mua · 21, 21114: and.:\ tlmty-tin· (.>5) <lay ac t ua l S\1SJH:nsion for Fnilur<.· to Protect his Position 011 February IH, 2111 - C:l:tim:111r's failure to m<.·et hi:, ohlig:uion to report for uuty is ptoblcmatic, to :..ay cl lc:tst.
' Il ic BoarJ Jetcrminc!- th:11 while the char e of failure to protect wa:.. pro\'en hy suh:..t:111tiaJ eviocl\Cc, U\tt th<.· ch:ir c of lll:trkifl off Ulllk-r fol": pn:t<·.n :, W!I S not. the pcn:\lr)' as cs:..td wa:.. i:xcn si\'c. ·111e di sc ipline :1:-:..e, s n l :..h:i.11, thcrd un:. be reJuc<.-<l to a fort)•-fi,·c·. ( 5) d:i :ictu.11 u,pt:1Non.
\\V \RD.
Chimsu:-t;1incd in :lCcordancl· with the fiml111!, - Carrier i c.lirc c rn l fo nrnke thr
,\ w:ird t·ffc:crivi: wirhin 1hi1-t)· (.,II) <l.,y follow-in the <lat<.· two (2) memhC'n. of thi:.. Board affii. chc ir si natures thereto.
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Hich:ar<l i-.:. H:anft. Ch:atrm:in
I). M. P:isc:ird l:i, Employee i\lembcr D. L 1-.:erb y. C:irrier i\kmhcr
D:11e<l : u C:hic:i o. Jlhno i:,. Fd >ruary . 01 H