The Second Division consisted of the regular members and in
addition Referee David Dolnick when award was rendered.
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Chesapeake District)
EMPLOYES' STATEMENT OF FACTS: Machinist William L. Jackson, hereinafter referred to as the claimant, was employed by the Chesapeake and Ohio Railroad, hereinafter referred to as the carrier, for a period of six (6) years in the carrier's shops at Huntington, West Virginia, on the first shift 7:00 A. M. to 3:30 P. M., Monday through Friday, rest days Saturday and Sunday.
The carrier, represented by Mr. D. W. Walker, Superintendent, Huntington Shops, notified claimant under date of March 10, 1969 to attend an investigation to be held in Production Manager's office at Huntington Shop at 9:00 A. M., March 26, 1969; however, this date was by mutual agreement changed to March 24, 1969, at 9:00 A. M. on the following charge:
"You are charged with failure to properly perform your duties as a machinist on March 5, 6 and 7, 1969, while assigned to final assembly of EMD power assembly components in the Power Assembly Gang by reason of the fact that on these days your output was as follows:
The employes engaged in a deliberate work slow down with Jackson participating therein. The evidence brought forth in the investigation indicates that on the first day involved in the charges, Jackson performed one and one-half hours' service, on the second day performed five and one-half hours' service, and on the third day performed four and one-half hours' service. In the instant case, the employes made a mockery of the whole proceedings, requiring two full days of handling, parading forth seven witnesses with long dissertations on the part of the three employe representatives present with much irrelevant matter brought into the investigation. Of the seven Nvitnesses brought in by the employes, two have cases pending before your Board; E. R. Davis, Case No. 70-156, and L. J. Smith, Case No. 70-149.
Throughout the investigation the employes allege that investigations cannot be held unless the carrier can show a rule number which the employe has violated, the carrier has no right to establish work standards or determine what is a reasonable day's work, the quality of the supervision is challenged, supervision is accused of instructing employes to deliberately slow down, which statements the accused supervisor specifically denied on page 16. The employes further indicate that they should be the judge of what should be produced and considered as a day's work. The employes also allege that the supervision should require the man to do a reasonable day's work; yet, at the same time, lend every support to the employes who do "soldier" on the job.
The statement of Foreman Hinerman is quite significant, and after reviewing Hinerman's answers to questions asked, one can easily understand the employes' attack on Hinerman and endeavor to discredit him by their allegations and inferences. Review of the statements of Hinerman and Sullivan will clearly indicate why Jackson performed no more actual work than he did on the dates under investigation. The information developed also indicates that Jackson's output on these dates were below his output on other dates, which may or may not have been satisfactory.
It is the position of the Carrier that the evidence fully supports the minimal discipline rendered in the instant case. A reading of the lengthy investigation reveals the issues in this case and the same harangue as involved in the Jackson case took place in the cases of Larry Jack Smith, H. R. Davis, Jr., T. P. Pettigrew, and Ernie Ray Davis, and Carrier wishes to make those cases an overall part of the instant case by reference.
Carrier feels that it has the right, duty and obligation to its employes, the public in general, and to its stock holders to properly manage its affairs. To sustain the claim of the employes in the instant case would destroy much of the ground that has been gained in the employe-employer relationship since this and other investigations were held at Huntington Shops in early 1969.
It has been held many times by this Board that the Board will not substitute its judgment for that of the carrier unless it can be shown that the carrier's discipline as rendered was arbitrary, capricious, or unjust. This cannot be shown in the instant case. To the contrary, the discipline rendered in view of all circumstances was extremely lenient; therefore, the carrier urges that the claim of the employes be denied in its entirety.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that: