Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7668
SECOND DIVISION Docket No. 7519
2-CR-CM-t78
The Second Division consisted of the regular members and in
addition Referee Ralph W. Yarborough when award was rendered.
( System Federation No. 109, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That under the current agreement, Coach Cleaner, Mark D. Zura wski,
was unjustly dealt with when he was assessed with a foxy-five
(45)
actual working day suspension from the Reading Company
(now Consolidated Rail Corporation), co:rxnencing .,;arch 2,
1976.
2. That accordingly, Coach Cleaner Mark D. Zurawski is entitled to
be compensated for all lost wages, made whole for all vacation
rights, pay the premiums for hospital, surgical and medical
benefits for all time held out of service, and pay the premiums
for Group Life Insurance for all time held out of service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the emnloye or employes involved 3..n this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Pax-ties to said dispute waived right of appearance at hearing thereon.
Carrier charged Claimant, Empl.oye Zurawski, with violation of Safety
Rules 2 (requiring that each employe be furnished a copy of the Safety
Rule Book and b e conversant with and obey the Rules) and Rule 5, reading
as follows:
"Safety Rule 5 - Employees who are insubordinate, dishonest,
immoral, quarrelsome:, or who are careless of the safety of
themselves or others, or who willivlly neglect their duty or
repeatedly violate rules, will be subject to discipline and
possible discharge from the service."
Form 1 Award No.
7668
Page 2 Docket No. 7519
2-C R-CM-'78
Specifically, Claimant was charged with an altercation and threatening
to take the life of Captain 0. P. Benjamin,
Jr.
of the Reading Company
Police Department, with the service ,revolver belonging to officer Benjamin,
,resulting in Claimant being taken into custody by Reading Company Police
Officers 0'Connel and Griffin, and charged by the General Detectives
Division of the Philadelphia Police with assault and possession of
instrument of crime.
The record. reveals that the disturbance and fight grew out of efforts
to collect an outstanding traffic ticket which Claimant claims he had paid,
and which an investigation showed he had previously paid.
This entire altercation began with a claim against Zurawski that there
was an outstanding unpaid traffic ticket, owed by the Clairiant, for the sure
of 15.00. Claimant was called into the office of Carrier's Police
Department in connection with a complaint from a Belmont Barracks Trooper
over the alleged outstanding traffic v-arrant. Claimant stror,-,ly contended
he had paid it, the tropper called a control office for confirmation.
The allegation was cleared up in Claimant's favor and the trooper left the
office.
It was at this point that an altercation occured. There are conflicting
accounts, but highly in Claimant's favor, is a statement by Captain Benjamin
that "Bagosy referred him (Clair.ant) to me and advised that I knew of his
past thefts from the Co npany and wished to know what vehicles lie would have
on the property". That statement provoked Claimant to call Captain Benja~rin
a "goddamned liar". The record reveals that Captain Benjamin requested
Claimant to go with him down the stairs to a secluded area. From that
point on the accounts of the altercation are directly opposite. Each claims
that the other struck him first. Captain Benjamin alleges he was attacked
by Claimant. Claimant alleaes Captain Benjamin attacked him first. Each
accuses the other of striking the first blow.
At the police station Claimant took a polygraph examination which
supported his account of the affair. Captain Benjamin refused to take the
examination based on his "well known disregard for their validity".
One question stands strongly before this Board. Why did Carrier not
produce as witnesses, Patro?aren Bagosy, Griffin and O'Connell who were in
the immediate area and at least had some knowledge of tte altercation?
Those three patro:Lmen surely could have relieved arty- doubt over
who
initiated the altercation.
While this 3oard nomally does not resolve conflicts of oral evidence,
we believe Carrier has conmletely failed to evaluate the evidence presented.
It has accepted the statement of Captain Benjanin against the evidence and
sound reasoning to the contrary.
Form 1
Page 3
Award No.
7668
Docket No. 7519
2-CR-CM-'78
This Board finds that Claimant was unjustly dealt with when he eras
suspended for forty-five (45) working days. We, therefore, direct Carrier
to make Claimant whole for wages lost as a result thereof, including vacation
rights, if affected. There is no showing that other benefits were affected
by the forty-five (45) day suspension.
A W A R D
Claim 1: Sustained.
Clam
2: Sustained as per findings.
NATIONAL RAILROAD P2)JUSTTNT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
1--l°Ros,-maxie Bxasch - t"Idministrative Assistant
Dated a Chicago, Illinois, this 15th day of August,
1978.