SYSTEM FEDERATION NO. 7, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
"Brainerd, Minnesota
February 21, 1958
Rule 39 of the July 1, 1955 Shop Crafts Agreement relating to discipline reads:
Particular attention is directed to that provision in Rule 39 which states that if it is found that an employe has been unjustly dismissed from the service he will be reinstated with seniority rights unimpaired and compensated for wage loss, if any, resulting from said dismissal. Based on the evidence developed at the investigation, Mr. Flansburg cannot be found to have been unjustly dismissed from the service. Therefore, Mr. Flansburg is not entitled to reinstatement under the plain provisions of Rule 39.
The carrier has shown that Mr. Flansburg removed property of the railway company from its premises on February 14, 1958 without authority. The discipline administered to Mr. Flansburg measured up to this man's dereliction. Rule 39 of the shop crafts agreement effective July 1, 1955 was complied with in meting out the discipline to Mr. Flansburg. This Division in awards without number has consistently adhered to the principle that it will not interfere in disciplinary matters unless the carrier's action was arbitrary and the employe failed to secure a fair and impartial investigation. The record in this docket makes it abundantly clear that Mr. Flansburg was accorded a fair and imprtial investigation; that the rules of the applicable agreement were complied with in discharging this man; that the evidence sustained the charges; and that the discipline administered was rendered in good faith and was not tainted with bias. Consequently this Division should not superimpose its judgment upon that of the management and order the reinstatement of Mr. Flansburg. The claim covered by this docket should be denied in its entirety.
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.
Awards of this and other Divisions of this Board are definite and uniform as to the prerogative of the carrier and degree of proof required to support a finding against an employe who has been charged with an infraction of rules of his company or of a controlling agreement.
Typical of these awards is No. 2207, Referee Carter sitting with the Second Division:
It is within the province of the representative of the carrier who presides at the hearing to determine the credibility of those who testify and to weigh and evaluate their testimony. If upon so doing, it is probable that the charge is proven and the representative so finds, this Board may not disturb that finding unless it is manifestly unsupported by the evidence.
Proof beyond a reasonable doubt, as required to convict in criminal prosecutions in Courts of Law, does not apply.
It is admitted that Mr. Flansburg took two pieces of quarter inch chain, one 25 feet 4 inches long, the other 13 feet 5 inches long, from the property of the company on the evening of February 14, 1958. It is probable that he also took the chain into the property when he went to work on the morning of that day. He was apprehended as he left the company property and concealed under his coat were the chains.
The company claims that the chain removed was its property. This Mr. Flansburg denies and offers proof that the chain was owned by a Mr. Thomas, who had given it to him for the purpose of welding and putting a hook and ring on either end.
The material and determinative issue, as developed, was the ownership of the chain.
Some of the expert evidence tended to support the contention of Mr. Flansburg.
That of the company to establish that all of the chain produced at the hearing was manufactured by the same company.
It was inferable that all of the chain had come from the carrier's stock, although no issue was made as to any of it except that found in the possession of Mr. Flansburg.
In this rather uncertain state of expert evidence as to the identity of the chains, the charge had to be resolved, largely, on other developments.
Some of these, which the trier of the facts had the right to believe and which were harmful to Mr. Flansburg's theory of the matter, were the concealment of the chain, his failure when apprehended to assert his right to have its possession, as he did at the hearing; his offer, according to the statement of the officer who apprehended him, to take the chain back as no one seen him take it, if the officer would let him go. The strong inference that the chain 3266-24 548