The Second Division consisted of the regular members and in
addition Referee Edward F. Carter when the award was rendered.
SYSTEM FEDERATION NO. 122, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: 1. That effective May 5, 1953, the Carrier unjustly dismissed Car Cleaner Jerry W. Williams under the terms of the current agreement.
2. That accordingly the Carrier be ordered to reinstate this employe to his seniority rights unimpaired and compensate him for all time lost arising out of its aforesaid eventual action.
EMPLOYES' STATEMENT OF FACTS: Car Cleaner Jerry W. Williams, hereinafter referred to as the claimant, was employed by the carrier on June 18, 194 7 in its Mott Haven yard in New York City, New York, and remained therewith continuously in service for five (5) years, ten (10) months and seventeen (17) days, or until May 5, 1953, when his employment relations of almost six years were terminated.
The carrier's General Foreman Nee made the election to summon the claimant to stand trial first on April 9 and then on April 15, 1953 on the charge of having assaulted his supervisor, as set forth in the submitted copies of letters signed by General Foreman Nee dated April 7 and 8, 1953, identified as Exhibits A and A-1.
The claimant's hearing was held as above scheduled, and copy of the transcript thereof is submitted herewith and identified as Exhibit B, however, the carrier's General Foreman Nee made the further election to discharge the claimant effective May 5, 1953, or twenty (20) days after the parties established their hearing record on April 15, 1953, which is armed by copy of the submitted letter signed by General Foreman Nee, identified as Exhibit C.
This dispute has been handled as provided for in the current agreement effective June 16, 1951, with the result that the highest officer designated by the carrier to handle such appeals has declined to adjust it.
POSITION OF EMPLOYES: This dispute is subject to be determined on the basis of the parties' jointly established record, Exhibit B, at the
Inasmuch as the organization's claim in behalf of Car Cleaner Williams is entirely without merit, it should be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant was a car cleaner employed by the carrier in its Mott Haven Yard in New York City, New York. On April 9, 1953, he was charged with assaulting his assistant foreman and inflicting injuries necessitating hospital treatment. After a hearing, claimant was found guilty and dismissed from the service of the carrier affective May 5, 1953. Claimant contends that he was unjustly dismissed and requests reinstatement with pay for all time lost.
The foreman states that he entered car Red Desert at about 11:30 A. M. on April 6, 1953 and found claimant working in the ladies room of the car. He questioned the correctness of the methods used by claimant in cleaning the car. He says that claimant did not answer him until he had repeated his question at which time claimant swore and used obscene language which was directed at the foreman. He accused the foreman of picking on him. The foreman ordered him to report to the general foreman. The foreman says that as he was leaving the car, claimant assaulted him from his rear, placed his right arm around his neck and throat, and struck him in the face several times with his left fist.
The story told by claimant is that the foreman came in and questioned his method of doing his work. He says he did not answer the foreman until he asked him about it the third time. He states that the foreman then ordered him to report to the general foreman. On the way out of the car, claimant says that the foreman pushed him and that he grabbed the foreman by the collar to keep from falling. He says that the foreman then turned and 1812-9 132
clinched with him and that the foreman tried to trip him with his foot. Both men suffered injuries. After the scuffle, claimant went back to his work until Assistant Foreman Roman and a Mr. Wilkie came for him.
The statements of the two participants are in conflict. There are facts and circumstances, however, that corroborate the foreman's story. In the first place, claimant refused to answer the foreman's questions when the latter came into the car as he is required to do. He does not deny cursing the foreman and using obscene language toward him-merely stating that he did not remember doing so. He did not report to the general foreman as he was told to do and remained in the car until the assistant foreman came for him. When asked by the assistant foreman why he choked and punched the foreman, he said the foreman was picking on him. He did not deny choking or punching the foreman. At the general foreman's office he at first refused to make a written statement. He later made a written statement in which he did not deny striking and choking the foreman. It is plain that he refused to give the general foreman all the details of the incident on the day it occurred.
It is clear to us that claimant and not the foreman was the aggressor. If it had been otherwise, there is no reason why claimant should not have told the general foreman the facts. He did not do this. He now tells a story which would indicate that the foreman was the aggressor. The evidence does not support any such conclusion. The evidence was clearly sufficient to sustain the finding of the carrier that claimant physically assaulted his foreman. A dismissal from the service is warranted for such an offense.