The Second Division consisted of the regular members and in
addition Referee Thomas C. Begley when the award was rendered.
DISPUTE: CLAIM OF EMPLOYES: That under the current agreement and the June 5th, 1956 hearing transcript, the Louisville & Nashville Railroad Company, in the meantime, elected to unjustly dismiss Machinist J. E. Barksdale from its service on June 21, 1956.
That accordingly the Louisville & Nashville Railroad Company be ordered to restore this said employe of twenty or more years employment relationship to service with all rights unimpaired and with compensation for all time lost since the aforesaid date.
EMPLOYES' STATEMENT OF FACTS: The Louisville & Nashville Railroad Company hereinafter called the carrier, first hired J. E. Barksdale thirty-five years ago in the capacity as a section hand for about two years, and the balance of the time as a machinist helper and a machinist.
The carrier elected to summon Machinist J. E. Barksdale hereinafter referred to as the claimant to stand trial at 8:00 A.M., May 29, 1956 (but the date thereof was mutually changed to June 5, 1956), on the charge of improper conduct while riding Passenger Train No. 1 from Louisville, Kentucky, on the night of May 11 to Birmingham, Alabama, arriving there on the morning of May 12, 1956, which is confirmed by the copy of letter dated at South Louisville, Kentucky, May 24, 1956, submitted herewith and identified as Exhibit A.
The trial (hearing) proceeded as above scheduled conducted by the carrier's general supervisor of diesels, and a copy thereof is submitted herewith and identified as Exhibit B. Nevertheless the carrier's Mr. Nelson, superintendent of South Louisville Shops, elected and ordered the claimant dismissed from the service effective at the close of his shift Thursday, June 21, 1956, which is confirmed by the copy of communication dated June 21, 1956 addressed to S. C. Snow and signed by W. D. Nelson, submitted herewith and identified as Exhibit C.
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.
From the submissions and arguments of the parties, the Board finds that the evidence submitted at the investigation is in conflict. This Board, has said many times and now repeats, that it is in no position to resolve conflicts in the evidence. The credibility of witnesses and the weight to be given their testimony is for the trier of the facts to determine. If there is evidence of a substantial character in the record which supports the action of the carrier, and it appears that a fair hearing has been accorded the claimant, a finding of guilt will not be disturbed by this Board, unless some arbitrary action can be established. The claimant has failed to show such an arbitrary action in this claim. Reasonable grounds exist to sustain the determination of guilt made by the carrier.
The First Division in Award 15029 found that an employe may be disciplined for off duty conduct while traveling on a train on free transportation of the carrier from one point to another.
The Board finds that this claimant was employed by the carrier on June 4, 1947. The claimant had previously been employed by the carrier but resigned from the carrier's service in August of 1946. The Board also finds that the claimant had been disciplined by the carrier for being under the influence of alcohol and being insubordinate to his foreman in August, 1951, and that he was held out of service until December 6, 1951. Therefore, under the circumstances, the dismissal of the claimant from service is not unreasonable, arbitrary or excessive. 2688-io 271