Form 1 Award No
. 7718
Page 2 Docket No.
7558
2-HB&T-CM-
' 78
Claimant was dismissed on August 20.
1975
fox allegedly stealing four
new automobile tires, while he was employed as a Car Inspector.
Petitioner argues that the investigation never established the fact
that Claimant removed the tires from Carrier's property or indeed that he
was seen removing the tires fro;; the boy car in which they wcre being
L
shipped Additionally, it is argued chat the dismissal of the criminal
action brought against Claimant for "insufficient evidence" further
bolsters Claimant's position.
A study 01' the transcript Of the investigation
r 77
tthat there wa::.
_ reveals .>
ample evidence to support Carrier's conclusions with respect to Claimant's
guilt. The record shows quite clearly that the tires were on the box car
early in the rnoxrzir,~ of
Tul;,r
30th; that they were on Claimant's truc-'-,
,
later; that he did not notify any Carrier official of having "found''
tires; and finally, that he attempted to conceal the entire truch off
Carrier promises. Cartier's conclusion was a xeasonc~-)Ire one und.er the
cixcumsta.nces.
C1a:i.r,!3.nt
zT--s
dis:._lisred by Carrier for violation of certa~.n Carrier
rules, not for any violation of the cri.r::in.a.1 code. It must be noted that
the auawtrYa of Evidence required in a. crir; in^.l case :is far greater than
that required in a carrier disciplinary proceeding: in cyiminal trials
the case must be nrov ed "beyond a reasonable doubt"; in a discu_pL:, n::ry
proceeding "substantial evidence" rust be adduced. 1`a-rthen it is well
established that the decision 01
`cL
court in a criminal proceeding 1S not
dz.spasitive of a CarYer disciplinary proceeding. The jurisdiction vested
1n
a
Board
Such as this cannot be preempted by the coarts (see Third
Division Award 13127; PIlB
f
`>50, Award ;~
446;
and .iwar.·d
-tr
3 of PII;;' 11-,62
among others).
Based an the entire record, and fox the reasons indicated above, the
Claim must be denied.
A W A R D
Claim denied.
PATTOlVA.h RAILROAD A.DJCTSTIJET~iT DOA1~!)
By OxELex of Second Division
Attest: Executive Secretary
-"~`Q~, ional Railroad Adjustment Board
'"~".~..~`r · ~r~
°'.'-' ' ~' ;p
..,·.,.~
d ~,_~``
'1 * , _s
By
_ ~ s2.'~.:"*_a^:._..M...: .mss''
4... _ "~'.__ ~~""S:
~...`, :,_, _ _ ~~° ^ _.' '`' "°"^ i ~ . ;"_' *·:...`,<"~:....
izIsE:mar1e W 'asckv - Ad,!uir~a.._,tr;zi:-i·,Te .:..ss isi;a.wi.
Dated at Chicago, Illinois -this: Ist day of November, 1978.
Form 1 NATIONAL R.AT:CftOAD ADJ lUmI~'mI'dT BOARD Award
?PTO.
7719
SECOND D1VISIOTIT Docket No.
7562
2_-c~-o-t:~-' 7~
The Second Division consisted of the regular members and in
addition Referee George
S. Roulcis
when award was rendered.
( International Association of Machinists grad
Aerospace Workers
Parties to Dispute:
_ _ (
Chesapee,l:e and Ohio Railway Company
D7_mote: (,1.c.11.1
O% ~''_'~.LO~CS:
1. That the Ct-Le:>apeake and Ohio Rail-v.-ay Cory~an;r arbitrarily aad
capriciously dismissed Machinist ary Brown from service ;with
said Conga.ry.
2. Etcco.rd.ir_r;ly, ,ire name of Gary Drkov-a should be restored -to the
Grad': _'I ap-?.s":s
QOr)
seniority roster and IIcaChl°1int
u
Cary brown
Si
.'"u
1' L1..CC
be permitted to '_"v'._iL.-:,n service upon meeting t:;=. necessary physical
qualifications.
Findings:
The Second D:1.'T:!,._.C:)i of the Adj'Ll
>'t::uE':1t
EOU3,"d, upon the whole record an-A
all. the evicZetzcc:, fit:,:?, 'chat:
The carrier or ca.rrie)°s and the employe on emaloyes involved in this
dispute are respectively carrier and
enp:LO;;re
within the meaninS of the
IW ilway Wbox Act as approved J-aae 21, 19D)4.
This Division of the Adjustment Board Has jurisdiction over the dispute
involved herein.
Parties to said dispute waived fight of appearance at hearing Kereon.
Claimant -was dismissed on June
18, 1976
for continuing unauthorized
absences. Our review of the detailed record indicates that Claimant made
no serious attempt to protect his position or secure proper medical
certification of his x:av_'rpot°ted physical condition during the .period from
March 5, 1976 throut!: Nr.l_3_ 28,
176.
In fact, when requested to z,lmit
valid medical verification of taxi. Lis asserted "back" problem, claimant.
presented documentation to carrier on May 21,
1976,
the date of the 9_r?
VP.St7CatiVG hearing, which was dated May 11,
1976.
We see
Y.10
reason
i:02'
the delay.
Moreover, clain?~a tit ackrlowlociSed that ho had riot been exam-1-red by his
personal physician during the critical months of this absence, although
he had seer carrier's nred:i_cal dc;ci;or on jafr..:n::y _CC., February
K,
25 and.
March
5, 1976.
When '_jc Yru'.s exl.x'r::i.ned a. ain by C-t x·jOr' s .physician on
clay
Form 1
Page 2
Award No-
771~9
Docket No.
752
2-c~.;041k-
'78
10,
1?76,
tile medical exaw.ri_rer concl'aded in hi:, letter to the Loco:ot:Lve
Department Pflan:z~7er, dated May 11+,
lq76
that, ":% rave carefully observed
his gesture, his E,a:i t, his standing and sitting, ills enterir:,; his autorlobilr;, and I axn not at all convinced that there is sufficient disease
to keep him from working."
Clearly the record. shovrs that claimant didn't take the necessary
precautions to insure his employment status.
H15
dE'tT1C.'"!?,U=', a_f
v.T7.~'`~C11:!~,
4s~o:'. d-I_SCErYla'.7ljV counterproauctiv- "'Then
these nOY1Chal'd,YTL: :an1feStC.t1.0~!,S &re assessed a`;aiY1St the lz:.d1S-gated eye
witness recital of his tennis ,playin'r, E,cti_viti.es on May 10,
19(6,
we have
an inexorable con .pou.~rl.ing effect.
Carrier's eyeTrri ties s testified tle:~,t:
_,,·,
. Brown was i_-)layj
YIE,
t4nnis
with intensity. 1T ~ u
E'. . v
effortless cl- y r _ r , r
T"
T
1 SEW'V
a
1'iP?'
:.Gild. ~ r11S't1. !:1S
CIL _W S D, C' 2
volleyed both one i-arxea r.._..
`;-,'7-o
lvar:.ued., both ~'i~;i~t handed and. left
handed Burin tile 40 m:Lnu.tc·, s i.n 't-T_lich we observed him."
This rE:zcrta:e doesn't -PitG:nise a i~ersoa with a. srosta~ir.ed
serious
h.,~cl, injury. 1'~: yl.nd no c:~'e;xi=le e,r.~.::'me ~o e:.;:::use his a;;>_~1ce.
Co;°re'!ra.ta.Vcay, v.'t'.=
Cc?,LiYIU't
d1rl:l;:'trd the rE'_leVc'..:,Cy and £°.~'.',;i7.1C'·.'~t~On of-
OuY'
deC.'iS'i
OY:'3.l
law t0
tf.:C S?.'''_C1.a.:LC
.t.cCv
S l1G'rc'iYl.
h1c',LYi!u.nt
'LFCi..`,'
CO':1t~
Y1.1.1as
n
absent without ~..r°m.a;_;ion.
:Ir1
._-Cond
Division
1'.1_:j.x'd 731+z~, ~aore e
I`'li'-Bi'Carty stc3.i;C1. ':~i_^,t:
``vd!iC'::
an e"1010,`,rcC
:1
s so COn:p7.StEanil,`y v.ad h?.':.'itLle'..Lly.
absent over a
lrJ;^.-r pC Z.':!.E)'~.
of i i
:I1C?w
'Grlw~'t!
i:
i_S C~;OI?~Oz,~.^.r
Yit beCC)'=tE';;
Cj
SE'r 1
O11S
liability ra'L.t1c r than an a;;'Ca., Ca,'..'r1 er
7 S
entitled to his sc_-v-'
C-
f,Te find S`L11J1,tant13l evidence to
SL1_13k~Or't
carrier's disPos-Ition. We
will deny the claiM.
Claim denied.
A f1 A R :O
Attest: Executive
Secretary
Natic)nrl Railroad Ad,justmcnrt Board
NA'TIONAL RAILROAD AD<JUST?uTlv'T BOAIRD
By Order of Second
Division
1978.
$y .d`
~_-; ~fl.-v`'''~H
.~.-.^:".°y~1~Sx=~'f,.<3.. ~s'~..
i. ~ _ ~f
r __ __._ ~_°; <:..~.~
"'"wf. ~~_*~
.~.~-.X(.~Ta`
~ -~.~.~. ~_ _ ~ e.~- :~i.~ ~aa:
·a _'
. R ~.~
v...·' .VO:.·~Gill:%..'~:'1G' _:?T~:>C:1 - i1~1.T,i1Tll_SC·1<:G:L'~V:. = X51.: - i:%.i1`t
Dated at Chlcaro, I1_:Lino_'Ls, ttv .s
~ ~.s-L d<~y of Pove.:nber,
178.