Form 1 - --- NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7023
--- SECOND DIVISION Docket No. 6911
.- _ 2-ICG-CM-'76
The Second Division consisted of the regular members and in
addition Referee Louis Norris when award was rendered.
( System Federation No. 99, Railway Employes'
( Department,, A. F. of L. - C. I. 0.
Parties to--Dispute:` ( -~ - -~ Carmen
(
-` ~"""' -- ~-'~-
~~ --°"( The-Illinois Central Gulf Railroad Company
D;I.spute-:
'W
C:iaim
of Employes:
1. That; under -theycurrent Agreement, Carman Welder H. E. Smith
and Carman R. A. Nash were unjustly suspended from the service
--- . -- -------of the Illinois Central Gulf Railroad for sixty (60) working
days beginning November 26, 1974, and ending February 12, 1975.
2. ~Tha t accordingly the Illinois Central Gulf,Railroad be ordered
to compensate Carman Welder H. E. Smith and Carman R. A. Nash
for all time lost: account of the aforesaid unjust 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 waived right of appearance at hearing thereon.
On the date in question, November 9, 1974, Claimants were assigned
to work as carmen on the morning shift. About noon, General Car Foreman
Velduizen was leaving the yard for home when he noticed Claimants riding
together on a shop tractor during their assigned lunch period. He gave it no
thought at the time and proceeded on his way. Shortly thereafter, having
forgotten something, he returned to the yard. He noticed movement in a
garage, known as-the "dope house", which is adjacent to the employees parking
lot. Upon entering the "dope house" he discovered Claimant Smith hiding
behind an industrial buggy. He also noticed a foot portruding from the buggy.
This foot turned out to belong to Claimant Nash who was also hiding. Velduizen
noticed also that Smith's shop tractor was inside the "dope house".
l -Form 1__ Award No. 7023
Page 2 Docket No. 6911
2-ICG-CM-176
His suspicions having been aroused, Velduizen proceeded to search
--- the tractor and discovered 16 brass (pipe) in the tool box, which was covered
by burlap, and two brass hidden next to the operator's seat. Thirty-eight
more brass were found in the "dope house" concealed under rags beneath an
open window facing the parking lot.
According to Velduizen, Smith confessed that he intended to steal
- the brass and sell it.---This is denied by Smith. In any event, Claimants
were suspended pending formal investigation, which was held on November 19,
1974. The charge=was "attempted-theft of Company material". Claimants
were found guilty as charged and each was suspended from service for 60
___.~_._..__working`days: " _~--_ ~_.~ _r-
. ____
-.Petitioner-contends-that Claimants were not proven guilty of removing
Carrier's property; that there was no proof that the brass was placed in the
buggy by Claimants or-,that Claimants were observed removing the brass for the
purpose of stealing. Additioizally, Petitioner contends that a fair and impartial investigation was not held and that the discipline assessed was unreasonable and arbitrary.
A t the outset, Carrier raises the procedural objection that certain
Exhibits attached to Petitioner's rebuttal to this Board constitute "new
matter", not having been submitted during the handling of this dispute on
the property. These Exhibits consist of a reward bulletin, copy of a news
paper article on a Supreme Court decision, and copies of waiver forms to be
signed employees prior to interrogation. __._-
We sustain Carrier's objections on this issue. This Division and
all other Divisions of the Board have consistently held in innumerable prior
Awards that issues and evidentiary matter presented for the first time at
this stage of the appellate process constitute "new matter" and as such are
inadmissible for consideration. .
See Award 2374 (Carter) as well as Awards 3551, 4011, 4249 and 4926.
See also Rules of Procedure., Circular No. 1, National Railroad Adjustment
Board, adopted 10/10/34, and additionally, 3rd Division Awards, 18656, 19101,
20064, 20121, 20255 and 20468, among many others.
--Petitioner on its part contends that Carrier violated Rule 39 of the
Agreement in that no Organization representative was present during the informal
meeting held between Carrier officials and Claimants on November 11, 1974. Rule
39, covering discipline and investigations, provides for representation of
the Organization at the formal hearing,, but does not provide for such representation at informal meetings leld with company officials.
Accordingly, no rule in violation having been cited by Petitioner, we
do not sustain the objection raised on the latter issue.
w
Form 1 Award No. 7023
Page 3 Docket.No. 6911
2-ICG-CM' 76~,~_.
We have carefully reviewed and analyzed the transcript of the testimony _
and the entire conduct of the Investigation. We find that the Investigation`-"w- -`
was in all respects fairly and impartially conducted, with representation
of Claimants by their authorized representatives, with full opportunity for
cross-examination of witnesses, and with ample opportunity to Claimants to
testify fully as to their version of the facts.
=~=-`°'=°=-w~=-°=~"~"''·
The entire series of events that occurred on the day in question,
particularly the observations of the Foreman as to the conduct of Claimants,
the fact of Claimants' hiding for no credible reason, the finding of -tlie'°' -
concealed brass on the vehicle in the possession of Claimants that entire
morning, and the additional concealed brass found at the same site, arre'°-~'=,7=
w - "~""~""
fraught with suspicion as to the conduct of Claimants and their motives. The
absence of proof that Claimants "removed the material from the property",. , ~~ ~ . ,~-._._
as contended by Petitioner, is of no relevance since Claimants are not charged
with "theft" but "attempted theft".
We have held repeated=ly that in discipline cases the burden of-..proof.-'.. _ _
is upon the Carrier to establish by substantial probative evidence that Claimants
are guilty as charged. Prior Awards are legion on this established
pZiaci.pl.e.
and need hardly be cited.
On the entire record, particularly the testimony adduced at the Investigation, we find that-such substantial probative evidence is present in this
case and that Carrier dial in fact sustain its burden or proof. Nor does the
fact that certain of the evidence was circumstantial in nature militate against
such finding.
See Award 5934 (Dorsey). See also Award 10440 (3rd Div. - Rose);~in
which the Board held:
"Circumstantial evidence is valid and sufficient to
support a charge of wrongdoing. See Award ?657." ~----
In Award 12491 ( 3rd Div. - Ives), the Board stated:
-.,
"The mere fact that the evidence is circumstantial, >.-.~:~"°-'
makes it no less convincing and the Board cannot
say as a matter of law that the Carrier was not
justified in reaching its conclusion following the
trial.(Awards 4808, 6546 and 7657)."
See also Third Division Awards 14066 (Rohman) and 15025 (Mesigh).
In respect to the testimony of Foreman Velduizen, the principle
is
well
established that Carrier has the right to rely on the testimony and observations
.°of its supervisory employees.
Form 1 -.
Award No. 7023
Page 4 Docket No. 6911
2-ICG-CM-1 76
See Awards 4981 (Weston), 6281 (McGovern), 6327 (Harr) and 6408
(Lieberman)., among others.
The following language from Award 1809 (Carter) is particularly
apropos and directly applicable to the facts of this dispute:^ - ,._
"There was direct conflict in the evidence. The
board--is in no position to resolve conflicts in the
evidence. The credibility of witnesses and the weight
to be given their testimony is for the trier of the
facts to determine. If there is evidence of a substantial character in the re cord-which supports the action --of the carrier, and it appears that a fair hearing has
been accorded the employe charged, a finding-of guilt ._.will not be disturbed by this Board, unless some arbitrary
action can be established. None is here shown. Reasonable
grounds exist to sustain the determination of guilt made
by the carrier." -
See also Awards 3266 (Hornbeck), 4744 (Johnson), 6456 (Bergman) and
6525 (Fxanden). To the same effect, see Third Division Awards 17914 (Quinn),
18550 (O'Brien)., 19487 (Brent:), and 20769 (Norris).
_,_ _ _
Additionally, tae see no basis upon which to conclude that the discipline
here imposed, 60 days suspension, is unreasonable, arbitrary or capricious,
_-or_ in-v.i,olation of due process.
_-
See Awards 6392 (Shapiro)., 6824 (Eischen) and Third Division Awards
15574 (Ives) and 18550 (0' Bri.en).
--
Accordingly, based on the entire record, the foregoing established
principles and controlling authority, we will deny the claim-
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order -of Second Division ---
By .
semarie Brasch -Administrative Assistant
Dated at Chicago, Illinois, this 26th day of March, 1976.