Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6932
SECOND DIVISION Docket
Moo. 6923
2 L&N-CNI-' 75
The Second Division consisted of the regular hers and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 91, Railway Employes'
( Department, A.F.L. - C.I.O. - Carmen
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1 - That the withholding of Carom n C. F. Helton from service
effective May 8, 1973, and his subsequent dismissal on
September .7, .1973, were improper and in violation of the
current agreement, and
2 - Accordingly, the Louisville and Nashville Railroad should
be ordered to -
(a) Restore him to service with seniority and all other'
employee rights unimpaired.
(b) Compensate him for all time lost as a result of his
dismissal with interest at the rate of 6% per annum
on all money due him, and
(c) Pay all premiums for his hospital, surgical, medical,
group life insurance and supplemental sickness benefits
for the entire time he is withheld from service.
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 was dismissed from Carrier's service, following an investigation, for his "horseplay" during working hours which resulted in his fatally
shooting a fellow employe. It is noted that Claimant was convicted of involuntary
Forts 1
Pa go 2
Award No. 6988
Docket No. 6828
2 L&N-CM-'75
manslaughter for this incident and sentenced to five years in the penetentiary,
which was subsequently changed to probation under supervision for the entire
period. There is no dispute with respect to the facts and circumstances
leading to the tragic accident. Also, there is no allegation that the investigatory hearing was improperly or unfairly conducted.
Petitioner's position throughout the entire handling of this
dispute was that the penalty imposed by Carrier for this incident was too severe
and was in fact extremely harsh and unjustified. In support of this position
the Organization cites the personal tragedy suffered by Claimant as a result of
the accident. It is also argued that the twenty years of service of Claimant
should have been considered and that "misdemeanors do not require life sentences".
There is no doubt that Claimant violated a t least the Safety Rules
promulgated by Carrier in his horseplay with the two guns and this is not disputed.
It is also undisputed that Claimant's actions resulted in the loss of life of
another employee, one
of his friends. We do not consider this type of horseplay,
even without fatalities, to be a minor rule violation as contended by Petitioner.
In fact we have held that the mere possession of firearms while on Carriers'
premises justifies Carrier's act of dismissal (see Award 6479 and Third Division
Awards 20199 and 20673).
It is so well established that it may be considered axiomatic that
this Board is precluded from substituting its judgement for that of the Carrier
in disciplinary matters unless Carrier's action is so arbitrary or capricious
as to constitute an abuse of discretion. In the case at bar Carrier's penalty
is amply justified by the record.
A WA R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
l
# 0;'
By
7254o-4~ ~_- -
NATION&L RAILROAD ADJUSTMENT BOARD
By Order of Second Division
semarie Brasch - Administrative Assistant
Dated a t Chicago, Illinois, this 12th day of September, 1975.