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(Advance copy. The usual printed copies will be sent later.)
"·rm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6'443
SECOND DIVISION Docket No. 6235
2-BN-CM-'73
The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
( System Federation No. 7, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That under the current agreement, Mr. W. L. Burton, Carman, was
unjustly held out of service on August 16, 1970 and unjustly dismissed
September 16, 1970, from the service of Burlington Northern Inc.
at Murray Yard, North Kansas City, Missouri.
2. That Burlington Northern Inc. violated the agreement on August 16,1970, when they failed to notify Carman W. L. Burton of the reason
he was being held out of service pending investigation.
3. That Burlington Northern Inc. violated the purpose and intent of the
agreement when they failed to furnish proper transcript of investigatilono
4. That accordingly, the Burlington Northern Inc. be ordered to restore
the aforesaid employe to active service and reimburse him for all
time lost during his suspension, restoration of all fringe benefits,
including vacation, seniority, pass rights, health and welfare
premiums, all paid for by carrier, and compensation for any costs
in connection with such benefits incurring during his suspension.
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.
Parties to said dispute waded right of appearance at hearing thereon.
i
Form l Award No. 6443
Page 2 Docket No. 6235
2-BN-CM-'73
Petitioner initially urges setting aside the dismissal of Claimant from
Carriers servfce on the ground that the procedure followed by the carrier was
:3defective and contrary to the appropriate rules of the Controlling Agreement.
Petitioner's approach lacks merit. Even if the General Car Foreman's
memorandum (Carrier's Exhibit No. 23) were not valid, Claimant was aware of the
incident which resulted in his being taken out.of service pending investigation.
Furthermore, this Board has ruled that it is incumbent upon Claimant or his
organization to assert its protest concerning initial process at the hearings,
which
was not done in this case. The variance between the notice of hearing specification
of the matter to be investigated and the grounds for dismissal set forth subsequent,
thereto was not violative of any rule or the rights of the Claimant. The citation
of infringed upon operating rules by the conduct which was the subject of the
investigation, duly set forth in notice thereof, was an embellishment of the
basic charge and did not materially effect the nature of the inquiry. Claimant
and his representative are employes of long standing with the Carrier. They were
or should have been cognizant of the operating rules and the extent that the factors.
to be reviewed might constitute a breach thereof. The inadequacies and errors in
the transcript were satisfactorily overcome by the allowance of a tape recording
of the proceedings. Carrier accepted the corrections proffered by Petitioner. i
Although the minutes contained errors, they were in understandable form and were
sufficiently accurate on significant testimony. Carrier is urged, nevertheless, to
make certain that the record of hearings are as precise as humanly possible, since
great reliance is placed thereon by all concerned and involved.
On the merits, this record more than adequately supports the findings of
the Carrier Officer who assessed the punishment against the Claimant. Despite !
certain errors of judgment on the part
of
supervision on the scene on August 16,
1970, Claimant's actions testified to, corroborated, and in meaningful parts,
admitted,
were
reprehensible and disclosed a propensity for a lack of control which
cannot be allowed to prevail, particularly in an industry where cool heads are
essential to maintain the safety of employees, passengers, and the property of those
utilizing its services. (See First Division Award 19538)
-:
This Board has established, in accordance with the authority vested in us
by the Railway Labor Act and the Controlling Agreements, the standards
which will
be applied in dealing with disputes concerning disciplinary action taken against
employes. Given that Carrier had substantial evidence to support a finding
if
infraction of reasonable rules or expected appropriate employe conduct and performance,
it is within the employer's discretion to determine the discipline to be imposed.
We will not interfere therewith, absent a clear showing that the penalty was ;.
arbitrary,
capricious,
unreasonable or excessive. There is no basis
in this
record
to permit a
reversal of
Carrier's action.
Claimant should have accepted Carrier's
offer of
reinstatement, on a
leniency basis, apparently made in recognition
of
his many years of service, with
alacrity. Petitioner is urged to ascertain
whether
said offer is
still open
and if
it is, arrange for Claimant to take advantage thereof.
( orn 1 Award No. 6443 '
i
?age 3 Docket No. 6235
2-BN-CM-'73
A WA R D
Claim Denied.
I
NATIONAL RAILF40D ADJUSTMENT WARD
By Order of Second Division
Attest:
al.
Executive Secretary
Dated at Chicago, Illinois, this 16th day of February, 19,/3.