Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7542
SECOND DIVISION Docket No.
7316
2-CR-EW-'78
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation No. 1, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That under the current agreement, Electrician Michael A. Lopez
was unjustly dismissed from the service effective October
23,
1975.
2. That accordingly, the Carrier be ordered to restore him to service
with all seniority rights unimpaired and with pay for all time
lost retroactive to the aforesaid date.
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,
7_934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Following hearing and investigation, Electrician Michael A. Lopez was
discharged from service of Carrier. The charge for which Claimant was
found guilty was set forth in the Notice of Hearing, as follows:
"Conduct unbecoming an employee of the Penn Central
Transportation Company; in that
you
had an altercation
with a Penn Central Patrolman, W. Voccio, on Track
6,
at approximately 5:30 AM, October 10,
1975,
Sunnyside
Yard, LIC, NY.
Menacing Penn Central Patrolman W. Voccio, resisting
arrest and having in your possession a dangerous
weapon (knife) at approximately 5:30 AM, October 10,
1975, Sunnyside Yard, LIC, N.Y., causing your arrest
by Penn Central Patrolman."
Form 1
Page 2
Award No.
7542
Docket No.
7316
2-C
R-Ew-'78
The record evidence in this case consists solely of the testimony
of Claimant and of the Patrolman he allegedly threatened. There was one
other person present in the car when the incident took place, but he
professes that he saw nothing, heard nothing and knows nothing. Examination
of the testimony of the two witnesses shows that they are in conflict on
nearly every significant point. Without doubt one of the two witnesses
did not testify truthfully. Bearing upon credibility determinations are such
factors as bias, self interest, demeanor and testimonial capacity. The
hearing officer resolved the credibility question in favor of the Patrolman
who testified that Claimant verbally abused and attacked him, pulling a
knife. Claimant testified that the Patrolman harrassed, provoked and struck
him, that he did not resist and that he did not have or use a knife. In
addition to the witness in the car who saw, heard and knows nothing, one
other witness established that there had been a slight confrontation between
Claimant and the-Patrolman prior to the alleged incident.
The only. way for us to sustain the claim is to make a credibility
determination by rejecting the Patrolman's version and accepting Claimants.
On the state of the record before us the Hearing Officer could have easily
done so, but his acceptance of the Patrolman's story is not per se
arbitrary, unreasonable and capricious. Even if Carrier believed the wrong
man where the issue is narrowed to credibility alone, we are unable to
resolve such conflicts. Rightly or wrongly it is firmly established
by a host of Awards that this appellate tribunal sha11 not resolve pure
credilibity questions. See Second Division Awards
6408, 6604,
7144 and
7196;
See also Third Division Awards
14556, 19696
and
21258.
We often
are frustrated by this anomolous precedent, but the principle is established,
it is understood and acknowledged by the parties and it is dispositive of
the claim before us. We have no alternative but to 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
R semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of May,
1978.