The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
Following his dismissal, claimant was allowed all vacation pay :to which he was entitled in accordance with the controlling Vacation Agreement. Carrier is not aware of any other vacation rights which would flow to the claimant under the vacation agreement and, in fact, asserts there are none. Petitioner's requests that the company pay premiums for hospital, surgical and medical. benefits and pay the premiums for life insurance are not supported by any rule, custom or practice in effect on carrier's property and, carrier asserts, are not properly referrable to your honorable board.
CONCLUSION: The carrier here asserts that the claim in this docket is entirely without basis or merit, and therefore respectfully requests that it 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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The claim is that after an investigation Claimant was unjustly dismissed from the service. The hearing concerned an incident in which the Claimant apparently strained his back and another employe experienced a barked shin. The notice of hearing given both was in part as follows:
Two other rules were mentioned which need not be considered, since the above were the only ones mentioned in the notice of Claimant's discharge.
The investigation record shows that during working hours in the shop Claimant announced his intention of putting a fellow employe three-fourths his size into a refuse can; that his victim attempted what is termed evasive
action, but that Claimant pursued him, seized him from behind, lifted him from the floor, and attempted three times to put him into the container, which each time was overturned but was immediately righted by another employe, who nevertheless professed to know nothing about the incident.
There is no suggestion that Claimant was irrational, irresponsible or quarrelsome, or that he had received any prior discipline during his fourteen years in the Carrier's service.
When asked to report the incident, both the Claimant and the victim of his horseplay at first concealed the facts; consistent with tradition the witnesses to the occurrence were quite reticent, the Carrier's attempt to obtain evidence in preparation for the hearing was made as difficult as possible, and before this Board the Carrier is accused of excessive and improper zeal; but the witnesses conceded that no threats, intimidation or improper means was used, and the record discloses none.
In view of Claimant's frank admission of guilt it is pointless to contend that the charge was not proved; but in view of the relative triviality of the offense, and his fourteen years of service, apparently without prior discipline, his discharge appears to constitute excessive discipline.
Claimant is ordered restored to the service, with seniority rights unimpaired, and with vacation rights accrued pursuant to that seniority, but without pay for time lost, or other relief claimed.