The Second Division consisted of the regular members and in
addition Referee Roscoe G. Hornbeck when award was rendered.
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (C,armen )
EMPLOYES' STATEMENT OF FACTS: Carman (Coach Carpenter) Albert L. O'Bryant, hereinafter referred to as the claimant, worked at the carrier's South Louisville Shops with a seniority dating of August 17, 1944, after serving an apprenticeship which started August 15, 1940.
Under date of August 19, 1957, the claimant `vas charged with "Improper Conduct" also "being vicious and profane" etc. He (claimant) was cited to appear in the Assembly Room, Louisville Union Station, on August 23, 1957 at 9 :00 A. M. for investigation. (See employes' Exhibit A.)
On August 23, 1957 the investigation was held as scheduled and a copy of the transcript is submitted herewith, identified as employes' Exhibit B.
As a result of the investigation, the claimant was dismissed from service by the carrier. In substantiation of this, we submit herewith copy of letter from the superintendent of shops to the general foreman of the car department, identified as employes' Exhibit C.
The claimant and his local chairman were properly advised prior to the investigation of the precise charges against him. They were afforded reasonable opportunity to secure necessary witnesses and were permitted to question the witnesses freely. It is true that there was some delay in preferring the charges and conducting the investigation. This was necessary, however, due to the illness of Conductor Mosley. It was not in violation of the discipline rule, and was not prejudicial to the claimant in any way.
In conclusion carrier submits that Claimant O'Bryant had a fair and impartial investigation, strictly in accord with the applicable agreement provision. The record contains substantial and convincing evidence to show that he was guilty of the charges against him. His conduct, while riding carrier's passenger train on free transportation, was inexcusable and fully justified his removal from carrier's service, and certainly indicates that he is not the type of employe the carrier should be asked to restore to its service. The disciplinary action taken by the carrier was not arbitrary, unreasonable or unjust, and should not be disturbed. In this connection attention is invited to the following excerpts from Awards 1109 and 1323 of this Division and Award 15029 of the First Division:
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, find 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.
Granting to the carrier the right to evaluate the testimony and if it reasonably supports the charge to so find, we hold that the charge that Mr. O'Bryant attempted to do bodily harm to Conductor Mosley is supported. Although the conductor was not hurt he says that he was struck lightly once, whereupon he knocked O'Bryant down.
The carrier had the right to find that the explanation of Mr. O'Bryant of the assault was improbable although there is little to indicate that he had any ill will toward Conductor Mosley.
That part of the charge that Mr. O'Bryant used vicious and profane language can only be supported by resort to hearsay testimony.
Although it is probable that some one in the car in which O'Bryant was riding was cursing, what was said does not appear and that it was profane or vicious may not be determined. That Mr. O'Bryant was cursing is largely conjectural.
The disturbance and the cursing took place at different times, the cursing some time before the disturbance.
A number of the passengers in the same car as O'Bryant say they did not hear him curse or see him do anything to cause a disturbance. Although they say that they were dozing when the disturbance occurred, it is probable that some of them were awake when the cursing took place.
In view of the fact that a material part of the charge was not proven, the altercation not serious, attended by some extenuating circumstances, and the 17 years of unquestioned service of O'Bryant with the carrier, the punishment was too severe.
Claim 1 allowed as to the discharge of Mr. O'Bryant from the service of the carrier.
Denied as to his suspension from the service as hereinafter stated in Claim 2.
Claim 2-Carried ordered to restore Carman (Coach Carpenter) Albert L. O'Bryant to service with seniority rights unimpaired upon the effective date of this award with no compensation for time lost.