Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7202
SECOND DIVISION Docket No.
6959
2-PCT-MA-'77
The Secqnd Division consisted of the regular members and in
addition Referee Martini I. Rose when aVard was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:,
. ( Penn Central Transportation Company
Disput. Claim of fmployes
1. That under the controlling Agreement, Machinist Helper John S. Longo
was,unjustly.dealt with when the Carrier dismissed him from service,
., after being·charged with "Insubordinatiop, using profane language
. to. a pupervisor and failure to perform assigned duties",,
on. May
16,
1974. '
2. That the Carrier be ordered to reinstate Machinist Helper John S.
Longo with all seniority rights unimpaired, compensate him at
the
applicable rate of pay for all time lost, make Mr. Jotin S, Longo
whole fox all Vacation benefits, Health &- Welfare Traveler ',s
,- Insurance and Provident Supplemental Insurance.
Tle -Second Division of the Adjustment, Board,, upon the whole recpra and,
all thi evidence, finds that: The 'fhe carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Rajl~qar, Labor Act -tas approved June 21, 1934. ,
This,,
Division oft the Adjustment Board has jurisdiction over the dispute.
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Petitioner contends that the Claimant was not given a fair and impartial
trial in that he was questioned in the presence of the Carrier's witnesses
and the trial officer used a "ping pong" method of interrogation. With
respect to the merits, Petitioner asserts that there is no evidence in the
trial record to substantiate the charges against the Claimant.
It is Carrier's position that the Claimant was afforded a.~air and
impartial trial at which substantial evidence.was presented to support the
charges, the discipline was fully justified, and that there is no reason to
disturb Carrier's decision.
Form 1 Award No. 7202
Page 2 Docket No.
6959
2-PCT-NIA-' 77
We are not referred to any rule of the applicable Schedule Agreeme4t
which obligated the trial officer to exclude Carrier's witnesses on the
questioning of the Claimant at the trial. even if, for purposes of discussion
only, exclusion of witnesses is regarded as an pxercisable right of the Claimant
rather than as a matter within the discretion of the trial officer, the trial
record shows that neither the Claimant nor his representatives requested the
trial officer to exclude witnesses. In the absence of such a request, there
was no reason for the trial officer to surmise-that the presence of Carrier's
witness was objectionable to the Claimant. To raise this procedural point
for the first, tame after the completion of the trial and the issuance of the
decision is clearly untimely and presents no valid basis for impugning the
propriety
of
the trial.
A similar conclusion must be reached with reppect to the Petitioner's
objection to the method of questioning used by the trial
officer. No
Abjection
on that scorq was made
by
the Clai.4ant or his representatives, The reasonable
inference from their silence at the trial
in
this regard is that they had no
complaint. We have examined the trial regord with care and do not find that
the trial officer's method of questioning, referred to by the Petitioner, was
'prejudicial to the, fair trial rights of the
Claimant.
Deteminati'on of the merits of the charges qp which claimant Was tried
concerned primarily the ti~stimorqy of the foreman
who
yms
the accuser and the
testimony of the Claimant who denied the charges acrd related his
versiQIR of
the
incident involved. Such testimony presented sharp factual conflict
Numerou.§
awards
have repeatedly enpun~iated the pri4ciples tha~.,in liscipline
cases the weighing of oonf~cting testimony and the reso1utioq' of thk
crecj~bil~ty of witnesses are functions of the carrier and that credited
testimony which reasonably supports the carrier's determinations must be
accepted even
though such test3~4ony was disputed. These principles are
controlling here. .
The record shows that Carrier has credited the testimony of the foreman
and that such testimony supports the charges against the Claimant despite his
denials and allegations. In connection with the Carrier's determination of
the factual dispute relating to the allegations of the foreman that the
Claimant failed to perform work even though made available to him by Mr. Roebuck,
it is argued that such testimony was fatally deficient in that Carrier failed
to produce Mr. Roebuck as a witness. For the reasons indicated, Carrier was
entitled to credit the foreman's testimony. If the Claimant or his representatives believed that the testimony of Mr. Roebuck was desirable or necessary,
they should have requested his attendance at the trial for~questioning on the
point.
No reasonable basis appears in this case to warrant rejection of the
Carrier's determinations. This finding, on the record, is applicable with
respect to the disciplinary action imposed by the Carrier.
1,
o ~--rn 1
Page 3
A W A R D
Clai-zn denied.
Attest: Executive Secret y
National
Railroad Adjustment Board
Award No. 7272
Docket No.
6959
2-PCT-MA-'77
NATIONAL
RAILROAD ADJUSTMENT BOARD
By Order of Second Division
emarie raseh - A inistrat v~ Ass
s
ant
Dated at Chicago, Illinois, this 4th day of
January,
1977.