Y

SPECIAL BOARD OF ADJUSTMENT N0. 924

Award-No. 6

Docket Nb. 6

PARTIES:: Brotherhood of Maintenance of Way Employes

TO Award No. 7

DISPUTE:: Chicago and North Western Transportation Docket No. 7

Company

_-. Award No. 8

STATEMENT OF CLAIM':,"Claim of the·~System Committee-of Docket No. 8

the· Brotherhood' that:-

(.1)- The dismissal of'T-rackman J. A. Bernardino for alleged °non-performance of work on July 18, 1982' was without just and sufficient~cause (Organization File-C&NW-D1043; Carrter File I3-11-24-98).

(;2)- The dismissal of Trackman J. F-. OrtYz for allbgedly 'driving-Company vehicle System Number 21-2252 without a valid driver's license and non-performance of work on July 18, 1982' was without just and sufficient cause (Organization File C&NW~D-1044; Carrier File D-11-24-97).

(.3Y The dismissal of Foreman John Renteria for alleged °erroneous-information recorded on daily work report` and allowing unauthorized person to operate Company vehicle System Number-21-2252 on--July 18, 1982' waswithout just and sufficient cause (Organization File C&NW=D=1045; Carrier- File--Il-11=24-96).

(4)' The Claimants·listed in Parts 1, 2 and 3 hereof'shall'be allowed the remedy prescribed in Rule 19(d)."

FINDINGS

The Board; upon the whole record and all the evidence, findsand 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 overrthe dispute herein.

The record shows thatlc3aimant John Renteria was employed as Section Foreman on C-arrier's Weekend fang inYDes Moines, Iowa. Claimants=J. A. Bernardino and J. F-. Ortiz were employed as trackmen on that gang. The Organization points out that each of the three claimants had. prior service ornnthe f-ormerrChiaago, Rock Island and Paoific-Railroad, with claimant Renteria having-approximately thirty years of service; claimant Ortiz-twelve years; and claimant Bbrnardino eleven years. The Carrier states, howeverr, that they each had about two years of service with the Chicago and North Western-,Transportation Company.

Award No. 6 Docket=No. 6

Award No. 7 Docket No. 7 Award:No. 8

Docket No. 8

Page-2. On Sunday afternoon, July 18, 1982, one ofrCarrier~s Special Agents conducted a Work Performance Audit, commencing at 3:42 P.M. Claimant-Ortiz>and claimant Bbrnardino were observed !rear an industry known as Bulk Service, where they arrived'in vehicle System No. 21-2252, at 4:07 P.M. F-or a period' of` 88 minutes these two claimants performed no service. At aboutt5=35' P.M. they begm,their- return trip to Market Street Office, from which they had departed for the-Bulk Service location, with claimant Ortiz driving the truck and claimant Bernardino ridingas a passenger. They arrivedat the Market Street office at about 5::50 P.M., where they conducted another brief conversation. Just prior to 6:00 P.M., Ortiz and Bernardino were joined by Foreman John- Aenteria. The three then preott0dd to Carriers office, sub~- mitted their paperwork, and departed Carrier's property.

As a result of the surveillance by the S.peoial Agent, the claimants were instructedto attend'formal investigation on the charges::

Mr. J . Henterta: -

"Your-responsibility for erroneous-.information recorded, on-daily work report and allowing unauthorized`personto operate company vehicle System N'o. 21-2552 on Juuly 18, 1982."

Mr. r. 0rtizs-

"Your responsibility for driving-Company Vehicle System No. 21-2252 without valid driver's license and nonperformance of work on:-July 18, 1982."

Mr. J. Bernardino::

"Your responsibility for non-performance of work on July 18, 1982."

The investigation was conducted' on-August-12, 1982, and a copy of the transcript has beeh made a part-,of the record: The claimants were present throughout the investigation and were represented. The investigation was conducted in a fair and impartial manners

From our study of the transcript of the investigation

Award No. 6 Docket No. 6

Award No. 7

Docket~No. 7

Award No. 8 Docket No. 8

page 3.

and the entire record before us, the Board is convinced that theclaimants-were-simply "goofing off" on the Sunday afternoon, rather than performing work. Ther$ is-substantial evidence that each claimant was guilty of the charge against him. Severe discipline eras warranted; however, permanent dismissal was excessive. The time that claimant's have been out of service should constitute sufficient discipline. We will!award~that each of the claimants be restored to the service with seniority and other rights unimpaired, but without any compensation for time lost while out of service.

A W A B D:.

Claim sustained to the extent indicated in Findings.

0 H D. E g

The Carrier--is:directed to comply with this Award-withinr thirty days from the date hereof.

Chairman, Neutral Memberr ~~
barrier Member Labor Member
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Date:: y· 2i I 3