I
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6680
SECOND
DIVISION Docket No.
6568
2-A8oS-MA-' 74
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
(
( Alton and Southern Railway Company
Dispute: Claim of Employes:
1. That the Alton and Southern Railway Company violated the
controlling Agreement when it unjustly and improperly
discharged Helper Machinist W. Riester on May
3,
1972,
as a result of investigation held on May 1,
1972.
2. That accordingly the Alton and Southern Railway Company
be ordered to restore Helper Machinist Riester to its
service, with all seniority, vacation, insurance and all
other rights and benefits unimpaired and to properly
compensate him for all wage loss retroactive to date of
discharge.
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 waived right of appearance at hearing thereon.
Claimant, a machinists' helper, was charged with threatening to
strike the General Foreman, on April
22, 1972.
Following an investigation he was dismissed from service on May
3, 1972.
Petitioner first claims that the hearing was improperly conducted
since the hearing officer was "the charging officer, interrogating
officer and was the judge and ,jury", citing Award
6329
as authority.
We note that in the Award cited, as well as in earlier awards dealing
Form 1
Page 2
Award No. 6680
Docket No.
6568
2-A8oS-MA-' 74
with the identical problem, the hearing officer acted as a witness as
well as the other roles indicated above, and under those-circumstances
only did we find that the hearing was unfair. In this dispute the
hearing officer did not testify and the transcript offers no evidence
of bias or unfairness; we do not find that one individual in the role of
charging officer, interrogating officer, judge and jury per se deprived
the Claimant of a fair hearing.
The transcript of the investigation herein contains evidence of
some strong language as well as the phrase: "I ought to knock you in
the mouth" attributable to Claimant. Since we cannot deal with matters
of credibility (Award
6281)
it is clear that there was substantial
evidence to support Carrier's conclusion in this matter: two witnesses
supported the charge, which was denied by Claimant. The record, however, also reveals that Claimant had been the Local Chairman of the
Organization and had in the past engaged in a number of arguments (some
heated) with the General Foreman. Further, an examination of the record
indicates that the General Foreman was not entirely blameless in the
altercation, having engaged in somewhat provocative behaviour himself.
For these reasons we conclude that the discipline imposed was arbitrary
and constituted an abuse of discretion. (See Award
6639).
A W A R D
Claimant shall be reinstated, with all rights unimpaired, but with
no compensation for time lost.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
R
marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this -.17th day of April, 1974.