SPECIAL BOARD OF ADJUSTMENT NO. 924
Award No.
Docket No. 71
PARTIES: Brotherhood of Maintenance of Way Employes
TO
DISPUTE: Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The sixty (60) day suspension assessed Trackman D.L. Walker
for failing to follow instructions on October 25, 1983 was
without just and sufficient cause and in violatin of the
Agreement. (Organization File 8D-4240; Carrier File 81-84115-D)
(2) Claimant D.L. Walker shall be allowed the remedy prescribed
in Rule 19(d)."
FINDINGS:
This Board, upon the whole record and all the evidence,
finds and holds that the employes and the Carrier involved are
respectively employes and Carrier within the meaning of the Railway
Labor Act as amended and that the Board has jurisdiction over the
dispute herein.
Claimant herein was employed as a trackman at the Carrier's
Mitchell Yard facility. Prior to October 25, 1983, Claimant had
injured his hand and was performing light duty. On October 25, 1983,
Claimant called his supervisor and reported off due to pain in his
hand. Claimant's supervisor told Claimant to report to the office
for an examination by Carrier's physician; when Claimant refused to
report, his supervisor told Claimant that he would pick Claimant up
at home and drive Claimant to the office. Claimant's supervisor
subsequently went to Claimant's house but Claimant was not at home.
Claimant then was directed to attend a formal investigation
on the charge:
Your responsibility in connection with your failure to properly
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follow instructions as given by Roadmaster Mr. Welker at
Mitchell Yard while employed as trackman on October 25, 1983.
After several postponements, the investigation was conducted on
January 6, 1984; Claimant was not present.
A
copy of the transcript
has been made
a
part of the record. We find that the investigation
was conducted in a fair and impartial manner.
Rule 19(d), referred to in the claim, provides:
If the charge against the employe is not sustained it shall be
stricken from the record. If the employe has been removed from
position held, reinstatement will be made with all rights
unimpaired and payment allowed for the assigned working hours
actually lost while out of service of the Company, at not less
than the rate of pay of position formerly held, less earnings in
outside employment, or for the difference in rate of pay earned,
if in the service. An employe who has earnings from outside
employment may deduct from those earnings actual necessary
expenses in securing and performing work.
This Board has reviewed the evinence and testimony in
this case; and we find that with respect to the organization's
procedural claims, the Claimant was granted all of his due process
rights. Although the organization claims that the Claimant was
not afforded the, opportunity to be present at the investigation
and hear the evidence against him, the record is clear,that on
four previous occasions, the time of the hearing was changed at
the request of the Organization. Moreover, at the hearing on
January 6, 1984, the organization's representative did not even know
the reason for the Claimant's absence. Apparently, the Claimant
had neglected to keep his representative advised of his absence on
the date of the hearing. Consequently, the procedural claims are
denied.
With respect to the substantive claims, there is
sufficient evidence in the record to support the Carrier's finding
that the Claimant was guilty of failing to protect his assignment
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' and comply with the roadmaster's instructions.
Finally, the Claimant's employment record indicates that
he had previously received a 45-day suspension. Hence, this Board
cannot find that the 60-day suspension was unreasonable,
arbitrary, or capricious, and we will not set it aside.
AWARD:
Claim denied.,
Chairman, Neutral Me ber
ier'Member h;mploye Member
Date:.~73
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