Form 1 =IOML RAILROAD ADJI;ST.7=L1T BGAFD :'ward '`do. 7449
SRCO11ID DIVISION Docket No. 7%-X26
2-SLSF-NA-' 78

The Second Livision consisted of the regular members and in addition Referee Herbert L. Tarx, Jr. ·.=rhea award was rendered.

( International Association of 'dachinists

( and Aerospace Workers

Fatties to Dispute:

(

( St. Louis-San Francisco Railway Company

Dispute: Claim of Er:ployes:

1. That the St. Louis - San Francisco Railway Company unjustly withheld

Machinist Apprentice Vincent D. Gibbs from service beginning

March 5, 1976 and subsequently dismissed him from service on

April 14, 1976 fox allegedly violating Rules A and B of the Rules,

Regulations, Safety Rules and Instructions Governing Mechanical

Department Employes an February 23, 1976 and fox allegedly violating

Rule C of the Rules, Regulations, Safety Rules and Instructions

Governing Mechanical Department Employes on February 24, 1976.

2. That accordingly, the St. Louis - San Francisco Railway Company be

ordered to compensate IMachir_ist Apprenti ce Vincent D. Gibbs at the

pro rata rate fox each wox'.i day beginning Mlaxch 5, 1976 until he

is reinstated to service. In addition, he shall receive all

benefits accruing to any other employee in active service,

including vacation rights and seniority unimpaired.

3. A claim is also mane for M-achinist Apprentice Vincent D. Gibbs'

actual loss of payment of insurance on his dependents and hospital

benefits for himself, and that he be made ;,mole for pension bere="it,s,

including -Railroad Retirement and Unemployment insurance.

'+. In addition to the money claimed herein:, the Carrier shall pay

~a

.~racIi i ni st Apprentice Vincent D. ViGibbs an additional s= of o;-~

per annum, compounded annually on the anniversary date of said

claim, in addition to any other wages earned elsewhere, in order

that he be :made whole.

Findings:

The Second Division of the ~=_djustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or em-ployes involved in this
dispute arespectively ,·,·,1oz ~ ~ i_n tn, -a mea,.i~ r.
are _ _ carrier and e_~.~.,~ ,. wi t ~_,.~g o___~_~. she
~'ail;~ray Labor Act as approves June 21, 193-=.

This Division of the %'-_CL4'a.St'filent ECard has Jurisdiction over the dis-~-ute involved herein.

Parties to said dispute waived right o-' appearance at hearing thereon.

Form i Award No. 7449
Page 2 Docket =~To. 726

2-szsF-~A-t78 _

The letter of dismissal reads:

"You axe hereby notified that as a result of formal investigation conducted with you by the undersigned in my office April 9, 1976 on charges that you violated Rule A, as it relates to altercations, and the first paragraph of Rule 3, as it relates to quarrelsome ox othex-wise vicious conduct, of the Bales, Regulations, Safety Rules and Instructions Governing 1,1echanical Department Employes fox your responsibility in connection with an altercation occurring at a point just north of the Frisco property line on Old Kansas Avenue, at approximately 4: 05 P,M., February 23, 1976 wherein you displayed a firearm and threatened to do great bodily harm to Sheet Metal Worker Apprentice L. TfT. Crain and p. W. Catlett; and further charges that you violated Rule B, fox your insubordination, and Rule C, account being absent from duty without permission for a period of approximately 30 minutes or gore the morning of Februar1r 24, 1975 after having been instructed not to check out or leave the property without first seeing the undersigned, you are effective this date dismissed from the service.

You will be furnished a service letter upon request after f5alfilling requirements incident thereto.

Please turn into :rry office all company property i n your possession."

General Regulations (A), last sentence, reads as follows:

"-

mployes :rm:._st not enter into altercations with any person, no natter what provocation may be given, but will make note of the facts and report to their ir.mediate superior."

General Regulations (B) reads as follows:

"Employes who are negligent or indifferent to duty, insubordinate, dishonest, ixrr=oral, yuarrels=e ox c the r:·ri s e vicious, o r who conduct themselves and handle their personal obligations in such a fray ta_at the rail-,,Tay will be subject to criticism and loss of good Tail11, T~>Z 11 rot b e retained in the service." /Emphasis added

Foam 1 Award No. 7449
Page 3 Docket No. 7+26
2-SLSF-MA-'78
General Regulations (C) reads as follows:

"Employes must be alert, devote themselves exclusively to the service, give their undivided attention to their duties during prescribed hours, reside wherever required, and obey promptly instructions from the proper authority in matters pertaining to their respective branches of the service."

The Organization took exception to the manner in which the investigative: hearing was conducted, since the hearing officer sent the letter of charges to the claimant prior to the hearing and also issued the letter of dismissal., ilumerous previous awards have found no fault with this procedure in and of itself. In this instance, review of the record shows that the hearing was conducted in a fair and imtoaxtial manner and that the Claimant and his representative had more than ample opportunity to present a defense.

Instead, the Claimant chose not to respond to most of the questions addressed to him, stating simply that the matter was in civil court. As an employe facing disciplinary charges from his employer, the Claimant did little to help himself. As set forth in Third Division Award No. 19558 (Lieberman), in which the employe involved refused to .respond to questions:

"We have stated- in a number of similar cases that the rules of evidence in criminal proceedings are not applicable in disciplinary investigations. In (Third Division) Award 4749 we said: 'Employes charged with rule violations who avoid answers to questions touching upon the claimed offense, subject themselves to inferences that the replies if made would have been favorable to the Carrier.' At a rearing of this kind the Carrier may promptly examine the accused concerning every point bearing upon his innocence ox guilty, whether or not he testifies in his own behalf. (Third Division) (Award 295)."

As to the offense itself, as well as the severity of the discipline imposed, the Board has no reason to disturb the judgment of the Carrier. The record of the investigative hearing shows that four different witnesses saw the Claimant draw a gun on and threaten two fellow employer. As to the insubordination and neglect of duty which occurred on the following day, neither the Organization nor the Claimant offered arms mitigating ardent, and the Carrier's action in including this in the charges ~rra,s :reasonable and proper.

Further note must b e taken, however, of the consideration that the glan-threaterino occurred after working hours and removed from. the Company's property. Do the disciplinar=y rules of the Carrier still apply in these ci rc=tances?
Form 1 Award 110. 7L+9
Page 4 Docket No. 725
2-SISF-144- 1 78

There is much to be said fox the right of privacy of an employe in his activities away from the employer's property and during non-working hours. Far more is involved here, however. The evidence from the investigative hearing is clear that the Claimant had the weapon in his possession before he left the Carrier's property and that the incident had its genesis on the property. Equally significant is that his threat was to two fellow employes. The Carrier is well within its discretion to believe a continuing threat remained fox the two employes should the Claimant be permitted to continue working. Under these circumstances, the Claimant is not entitled to exemption from compliance with the rules applying to the relationship among employes. Further, the insubordination and unexcused absence from work on the following day occurred on the property, where no privacy defense could 'be raised.

A i,T A R D

Claim denied.

NATIONAL RAILROAD A7JUST1KEEINT BOAHD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

_M _

By .'-.._,... E _ .x:a · ,.'t ^ ~ . · ~ ~ ~ _ t ..;s ,. _ .

`-° Rosemarie Brasch - AcuninistxativeAssistant

Dated at Chicago, Illinois, this 24th day of January, 1978.