Award No. 4302
Docket No. 3961
NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
addition Referee Ben Harwood when the award was rendered.
PARTIES TO DISPUTE
SYSTEM FEDERATION NO. 122, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L: C. I. O: (Carmen)
THE PULLMAN COMPANY
,DISPUTE:
CLAIM OF EMPLOYES:
1. That under the current agreement, Painter C. A. Herring was
unjustly dismissed from the service of the Pullman Company on
March 23, 1961.
2. That accordingly, the Pullman Company be ordered to reinstate the employe to service with all service rights unimpaired and
with pay for all time lost since March 23, 1961.
EMPLOYES' STATEMENT OF FACTS:
Painter C. A. Herring, hereinafter referred to as the claimant, was employed by the Pullman Company,
hereinafter referred to as the carrier, with seniority date of September 30, 1953.
On the evening of February 23, 1961, the claimant approached his local
chairman, Mr. W. L. White, complaining that leader Johanning had used
abusive and foul language to him that day.
On February 24, 1961, Leader Johanning and Mr. W. R. Sahrman, Shop
Manager, came to the sandblast pit, approached the claimant and questioned
him about the conversation held the previous day between the claimant and
Leader Johanning. Leader Johanning told the Shop Manager in front of the
claimant, that the claimant had used threatening remarks to him the previous
day. The claimant denied it, calling him a "damn liar", that it had been
Leader Johanning who had used the threatening remarks and foul language.
On March 7, 1961, hearing was accorded the claimant in the office of
Shop Manager W. R. Sahrmann.
Under date of March 22, 1961, Supervisor, Shop Cost Analysis C. H. Poole,
-directed a letter to claimant discharging him from the service, copy attached
and identified as Exhibit B. This dispute has been handled with all carrier
officials with whom such matters are subject to be appealed, without satisfactory results.
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138
with Adolph E. Wenke sitting as referee, settling a dispute in which the
employe was discharged from the service of the carrier, the Board ruled as
follows:
"The evidence adduced as to what happened in the dispensary
thereafter fully supports the company's finding that Rufus was guilty
of the charges made against him. The question then arises as to
whether or not the discipline imposed was, under all the circumstances, including claimant's twenty-three years of service, unreasonable. In this respect the company could take into consideration
claimant's record during his years of service, including the incident of
October 19, 1948. See Awards 1261 and 1367 of this Division. In view
of the serious nature of claimant's conduct and his previous actions
of a similar nature we find the company was justified in taking the
action that it did."
Also, in Second Division Award 1367, cited in Award 1544, the Board held
that the past record of an employe could rightfully be used in determining
the discipline to be imposed. The Board stated that it is not only proper but
essential in the interest of justice to take the past record of an employe into
consideration inasmuch as what might be just and fair discipline to an employe
whose past record is good, might and usually would, prove inadequate discipline for an employe with a bad record. In this connection, the Board, with
Adolph E. Wenke sitting as referee, stated as follows:
"In disciplinary actions it is not only proper, but essential in the
interests of justice, to take into consideration the employes' past
record when, after the employe has been found guilty of the charges
made against him, discipline is being imposed. This for the reason
that what might be just and fair to impose upon an employe whose
past record has been good might, and probably would be, entirely
inadequate for an employe whose past record has been bad. It should
be understood that such past record should in no way be considered
in determining the guilt or innocence of the party a's to the charges
for which he is being tried.
"In view of the claimant's past record, considering the nature of
the charge of which she has here been found guilty, we do not find
the discipline imposed to be either unreasonable, excessive or arbitrary."
Also see Second Division Award 1924 and Third Division Awards 430,
599, 2498, 27 72, 3235, 3987 and 4269.
CONCLUSION:.
In this ex parte submission the company has shown
that Painter Herring was guilty of each of the charges placed against him for
his actions on February 23 and February 24, 1961, and that in each instance
the penalty of discharge was warranted. Additionally, the company has shown
that awards of the National Railroad Adjustment Board support the company
in this dispute.
The claim of the Organization is without merit and 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.
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139
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
A reading of the transcript of the investigation conducted in this case
leaves no doubt that the evidence set forth therein fully substantiated the
charges against the claimant which were as follows:
"1. You made threatening remarks to your supervisor, Leader
H. Johanning, on February 23, 1961.
2. You were loud and belligerent to Leader Johanning on February 24, 1961, and called him a 'damn liar.' "
No useful purpose would be served by a detailed review of the evidence.
As was observed in Award 1137 of the Fourth Division,
Referee O'Gallagher:
"This is a discipline case in which there is evidence of a substantial character present in the record to show clearly that Claimant
had a fair and impartial hearing. The record further shows that the
decision of the Carrier to dismiss the Claimant from its service was
not arrived at arbitrarily, capriciously or from motives of prejudice.
Therefore, the Carrier having exercised its discretionary power to
discharge the Claimant, this Board has no power or right to substitute its judgment for that of the Carrier, nor to determine what
we might or might not have done had the matter come to us initially."
And again, as stated, in Second Division Award 3430, Referee Murphy:
"We do not feel that this Board should substitute its judgment
for that of the carrier unless the evidence proves that the carrier
assessed an unjust or discriminatory penalty. The carrier has a right
to expect its employes to observe the Rules and perform their work .
. . . This discretion is vested in them and we may not set aside their
judgment unless the evidence proves that they have abused this right."
Here, likewise, it is the opinion of the Board that the investigation held in
the case now before us was fairly and impartially conducted ands that the
disciplinary action taken by the Carrier was not arbitrary, capricious or in
bad faith. Therefore, we believe this claim cannot be sustained.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 30th day of September, 1963.