Award No. 4119
Docket No. 3966
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES?
DEPARTMENT, A. F. of L. - C. I. O. (Sheet Metal Workers)
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current Agreement, Sheet Metal Worker H. W.
Pierson was unjustly discharged from service November 5, 1959.
2. That accordingly the carrier be ordered to restore this employe
to service with all seniority rights unimpaired and with compensation
for all time lost retroactive to the aforesaid date, and all other contractual rights accruing to him.
EMPLOYES' STATEMENT OF FACTS: Under date of October 23, 1959,
Sheet Metal Worker, H. W. Pierson hereinafter referred to as the claimant,
was notified by the carrier master mechanic that he was charged with responsibility of sleeping while on duty October 23, 1959, and that investigation would
be held in his office Tuesday, October 27, 1959, beginning at 1:00 P. M. Copy of
that notification is submitted herewith and identified as Exhibit I.
On October 27, 1959, investigation was held in the office of the master
mechanic at South Louisville Shops, Louisville, Kentucky in connection with
the aforementioned charges and copy of the transcript is submitted herewith
as Exhibit "AA".
Under date of November 5, 1959, the carrier's superintendent notified the
claimant that Discipline Bulletin 149 regarding dismissal of a pipefitter applied
to claimant and in effect dismissed the claimant effective that date. The superintendent's letter of November 5 1959 as well as Bulletin No. 149 is submitted
herewith and identified as Exhibits IV and V.
The claimant's service record with the carrier is 20 years. Four years as
an apprentice and sixteen as a mechanic.
This dispute has been handled in accordance with the provisions of the
existing agreement effective September 1, 1943, as subsequently amended, up
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shown that he will not hesitate to misrepresent facts when it
suits his purpose to do so, and has demonstrated that he is not the
type of employe carrier should be asked to restore to its service
under any circumstances.
There is no basis for an affirmative award in this case and the claim of
the employes should be denied in its entirety. In this connection, attention is
invited to the following excerpts from awards of this and other divisions of the
Adjustment Board:
"There was direct conflict in the evidence. The board is in no position to resolve conflicts in the evidence. The creditability 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 employe charged, a finding of
guilt will not be disturbed by this Board, unless some arbitrary action
can be established. None is here shown. Reasonable grounds exist to
sustain the determination of guilt made by the carrier."
(Second Division Award 1809, Referee Carter)
"This Board is loathe to interfere in cases of discipline if there is
any reasonable grounds upon which it can be justified."
(Second Division Award 1109)
". . . it has become axiomatic that it is not the function of the
National Railroad Adjustment Board to substitute its judgment for
that of the carrier's in disciplinary matters, unless the carrier's action
be so arbitrary, capricious or fraught with bad faith as to the amount
to an abuse of discretion. Such a case for intervention is not presently
before us. The record is adequate to support the penalty assessed."
(Second Division Award 1323)
"In proceedings such as these we do not examine the record of
testimony to determine weight of creditability. We look for substantial
and satisfactory support, and when that is found our inquiry ends.
Awards upon this point are so numerous as to make citation of any of
them unnecessary."
(First Division Award 14552)
". . . Our function in cases of the kind here involved, as we understand it, under Awards of this Division of the Board so well known and
established that they require no citation or further consideration, is
not to pass upon the creditability of the witnesses or weigh the evidence but to determine whether the evidence is substantial and supports the charges as made. If it is we cannot substitute our judgment
for that of the carrier and it is our duty to leave its findings undisturbed unless it is apparent its action is so clearly wrong as to amount
to an abuse of discretion."
(Third Division Award 5401)
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.
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497
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
After a review of the record and without prejudice to the position of either
party in other or future cases, the Division holds that claimant should be reinstated with seniority and vacation rights unimpaired, but without pay for
time lost.
AWARD
Part 1-sustained
Part 2-sustained to the extent indicated in the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman,
Executive Secretary
Dated at Chicago, Illinois, this 6th day of February, 1963.
Serial No. 54
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
(The Second Division consisted of the regular members and in addi.
tion Referee Howard A. Johnson when the interpretation was rendered.)
INTERPRETATION NO. 1 TO AWARD NO. 4119
DOCKET NO. 3966
Name of Organization:
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Sheet Metal Workers)
Name of Carrier:
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
Question for Interpretation:
"Do the words in the findings of Award No. 4119, reading as following:
`.
. . the Division holds that Claimant should be reinstated
with seniority and vacation rights unimpaired, but without
pay for time lost.'
"and Award reading:
`Part 1 -sustained
`Part 2 - sustained to the extent indicated in the findings.'
"provide that the Claimant be paid for vacations due and earned?"
When claimant was discharged on November 5, 1959, the only contractual provisions for pay in lieu of vacations were Article 5 of the Vacation
Agreement, and Article 8 thereof, as amended by Section 5 of the Agreement
of August 21, 1954, neither of which is applicable to the circumstances here.
Article 8 of the Vacation Agreement was further amended by Section 2
of Article IV of the National Agreement of August 19, 1960, effective as of
September 1, 1960. If claimant had been discharged on or after that date
he would have been paid for any vacation previously earned but not yet
granted.
Since by the 1960 Agreement the parties expressly agreed upon September 1, 1960, as the date upon which the provision was to become effective,
this Board has no authority to advance its effective date to November 5, 1959.
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The question must therefore be answered in the negative.
Referee Howard A. Johnson, who sat with the Division as a Member when
Award No. 4119 was rendered, also participated with the Division in making
this interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman,
Executive Secretary
Dated at Chicago, Illinois, this 25th day of May, 1964.