RECEIVED
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7+83
SECOND DIVISION Docket No.
7225
2-sPT-MA-`78
B. K. TUCKER
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
International Association of Machinists
and Aerospace Workers
Parties to Dispute:
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement Machinist E. Dominguez (hereinafter)
referred to as Claimant) was improperly dismissed from Carrier's
service on April
4, 1975.
2.
That, accordingly, the Carrier be ordered to restore Claimant to
service with seniority and service rights unimpaired and with
compensation for all wage loss from date of dismissal to date
of restoration to service.
3.
Carrier violated the provisions of Rule
39
of the current controlling
Agreement in conducting a joint formal hearing which involved
employees of three
(3)
Shop Crafts, eliminating the possibility
of a fair and impartial hearing.
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 employs within the meaning of the
Railway Labor Act as approved June
21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Mr. E. Dominguez was employed by Carrier as a Machinist from January
19,
1971
until he was dismissed from service on April
4, 1975.
The letter
notifying him of his dismissal reads in pertinent part as follows:
"Evidence adduced in formal hearing conducted in E1 Paso,
Texas, March 11 thru March
19, 1975
established your
responsibility for participating in an unauthorized work
stoppage of the Company's service at El Paso, Texas,
February 10,
1975.
Form 1 Award No. 7+83
Page 2 Docket No. 7225
2-SFT-MA-'78
"Your actions in this instance were in violation of Rule
801,
that part reading:
'Employes will not be retained in the service who
are ..., indifferent to duty,... or who conduct
themselves in a manner which would subject the
railroad to criticism.',
Rule
804,
that part reading:
'Arty act of hostility, misconduct or wilful
disregard or negligence affecting the interests
of the Company will not be condoned...'
of the General Rules and Regulations of the Southern Pacific
Transportation Company, Foam S-22g2, as posted.
For reasons stated you are hereby dismissed from the
service of the Southern Pacific Transportation Company.
Please acknowledge receipt of this letter by affixing your
signature to the attached copy and arrange to turn in arty
passes or Company owned equipment to the Plant Manager's
Office, E1 Paso."
A voluminous hearing transcript is included in the record before us.
That transcript memorializes a "joint hearing" involving multiple crafts and
many employees which was convened March 11-1g,
1975
to investigate a concerted
"sick out" or unauthorized work stoppage on February 10,
1875.
Claimant and
his representatives objected to the format and conduct of the hearing on the
first day and refused to participate further. That claim is based at least
in part upon the alleged procedural insufficiencies of that hearing, specifically
that a joint hearing is sex se violative of Rule
39.
We are not persuaded
on this record that the hearing was per se defective under the Rule.
Accordingly Claim
3
must be denied.
Claimant boycotted the investigative hearing at his peril but his
dismissal cannot be upheld because no substantive evidence was adduced at
the hearing to support the charges against him.
We have combed the record with extreme care and can find not a scintilla
of solid evidence from which a reasonable mind could conclude that Mr.
Dominguez participated in, let alone was a "principal leader" of, an
unauthorized work stoppage on February 10,
1875.
The record shows that he
reported for work on time, was present and available fox work all day and
i left the property only once (and then with permission from his Supervisor)
to make a telephone call to his General Chairman. It is too well established
to require citation that Carrier has the burden of persuasion by substantial
record evidence that Claimant is culpable of the acts of misconduct with which
Form 1
Page
3
Award No.
71+83
Docket No.
7225
2-sPr-MA-·78
he is charged. Hearsay evidence is admissiable in arbitration proceedings,
but the absence of substantial evidence on the record before us requires that
we sustain the Claims 1 and
2.
Claimant shall be restored to service with his seniority rights
unimpaired and Carrier shall compensate him for the wage loss resulting from
his wrongful dismissal. In computing the amount of wage loss payable under
Rule
39,
outside earnings shall be deducted.
A W A R D
Claims 1 and
2
are sustained and Claim
3
is denied, all consistent with
the foregoing findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 21st day of March,
1978.