Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7+85
SECOND DIVISION Docket No. 72+5
2-MP-CM-'78
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rule 32 of
the controlling agreement when they suspended Cayman W. E. Kirkes
for a period of sixty (60) days after holding three investigations
on him for the same alleged incident, No. Little Rock, Arkansas.
2. That accordingly, the Missouri Pacific Railroad Company be ordered
to compensate Carman Kirkes at the pro rata rate for each work day
lost during the suspension covering period February 26 to
April 27, 1975.
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, 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.
The Claimant, Cayman W. E. Kirkes, is employed by the Carrier at
North Little Rock, Arkansas. A formal investigation was held on February
14,
1975; to develop facts and place responsibility, if any, for the
Claimant's allegedly being insubordinate to his Supervisor at approximately
3:00 A.M., January
4,
1975, while on duty. Following the investigation,
Claimant was advised by the Carrier by notice, dated February 26, 1975, that;
he was suspended from service for a period of sixty (60) days.
The Organization contends that Carrier conducted three investigations
and administered discipline on two occasions, the first discipline being
a letter of reprimand resulting from the "investigation" held on the night
of January
4,
1975, and the second discipline being that of the 60-day
suspension. The Organization contends that a General Foreman knows the true
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meaning of "reprimand", and that the only reason Carrier was unable to
produce the reprimand at a later time was that it was removed after the
Carrier realized its error in disciplining the Claimant twice for the same
incident. Indeed the record does show that General Foreman T. W. Gorge did
testify that "a record of this conversation and reprimand in (is) on file".
This letter was introduced in evidence in the on property handling of this
case, and we find that the letter was not a reprimand as used in any
disciplinary sense, but rather a statement of Mr. Duncan's and Mr. Black's
perception of the incident for the information of General Car Foreman
Copeland. We find, very narrowly, that the meeting with Mr. Duncan and
later the meeting with Mr. George was not in violation of Rule 32(a).
We find from the entire record that there was evidence of insubordination.
We find that record also discloses evidence and circumstances which renders
the discipline of a sixty-day suspension harsh and excessive.
Mr. Black, the Acting Foreman primarily involved in this incident with
the Claimant, testified in part:
"...at which time Kirkes seemed to stop his work and
walked over to heater where I was standing and I
asked him to leave the heater and assist Abernathy on
the bridge plate work at which time he refused to do
so, so I said well, let's both walk around there and
after I left the fire he walked around behind me. By
the time we got to where Mr. Abernathy was working he
began to tell me how sorry I was, called me sorry,
called me a son-of-bitch because I wouldn't let him
stand by the fire. I tried to explain to him that
after having 2 other eaxmen which were Malchaski and
Hardcastle, help him on the car, I couldn't let him
stand by the fire while they did what I considered to
be part of his work. I tried to talk to the man and
'he continued to call me obsene names, the names consisted mostly of Sorry SOB. Mr. Abernathy heard the
argument and raised his welding hood and asked what
was going on and I told him that I had instructed
Kirkes to help him and Kirkes toad gotten made and
then Abernathy tried to settle Kirkes dorm. Kirkes
asked me a coupld of times to take him to the office
and I tried to convince him that we could settle it
between ourselves, like grown men, adults, finally I
requested him to come to the office with me to discuss
the matter further. We walked toward the office and
when we got to the office door he refused to go in
telling me that he didn't have to without union
representation. I told him that he had to come to
the office but he didn't pay any attention to me, just
walked away. I then went to the office, explained
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"briefly to Mr. Tom Duncan, General Car Foreman, and
requested him to get Mr. Kirkes to the office so we
could discuss the matter. Mr. Duncan went out, got
Mx. Kirkes, brought him to the office and we discussed
it. That's basically how it ended."
Later Mr. Black testified:
"Q. What work did you specifically instruct taxman
Kirkes to perform?
A. To assist Mr. Abernathy in any way that he could."
Mr. Black testified:
"Q. Has there been any bad feelings between you and
carman Krikes prior to this incident?
A. Yes.
Q. Did Carman Kirkes owe you money?
A. Yes he did.
Q. Have you ever talked to other carmen at the repair
track about carman Kirkes' failure to pay you the
money he owed you?
A. I probably discussed it.
Q. Did you ever call carman Kixkes a no good SOB
that you knew you would never get your money
from him in front of the taxmen working at the
repair track?
Objection by Mr. Sheridan"
Mr. Black testified:
"Q. Have you had previous trouble with using foul
language to some of the men you are supervising?
A. On one occasion.
Q. Did you apologize to carman Hargrave for using this
language?
A. Yes I did."
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Mr. Kixkes testified:
"Q. Do you and Foreman Black have arty personal problems
between each other?
A. During the general time of the incident there was
a personal debt between myself and Mr. Black, I
owed him a certain sum of money, he repeatedly
asked me fox it while at work, even though I had
explained to him I intended to pay him and that
as I was shoat of money, would he please mind
waiting. "
Mr. Abernathy testified:
"Q. Did you see Car Foreman Black push or lay a hand
on taxman Kirkes?
A.
Q. What work could Kirkes have helped you at when
Black brought him down to the end of the tax that
you were working on?
A. None."
Mr. J. Z. Wilcox testified in part:
"...Mr. Black told him in a sarcastic manner to get
down to the other end of the car and Bill said I just
walked up to waxen my hands and Mr. Black told him to
go ahead and go down to the other end of the car and
help Abernathy. Bill started to walk off, Mr. Black
· said, come on we'll both go down there and Mr. Kirkes
asked him what was wrong with him, and he said I mean
it now leg's get to the other end of the car so they
walked off toward the other end of the tax and Bill
asked him again, what was wrong with him and as they
got near the other end of the car when I turned around
and walked off."
We order that the discipline be reduced to 30 days actual suspension
and that the Claimant be made whole fox his wage loss suffered, less any
outside earnings.
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A W A R D
Claim sustained in part as per Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of April,
1978.