Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7734
SECOND DIVISION Docket No. 7643
2-N&W-MA-' 78
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
(
Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That under the terms of the Agreement, Apprentice Machinist J. E.
Hart was unjustly suspended from the service of the Norfolk and
Western Railway Company for a period of thirty (30) days beginning
on the date of August
9,
1976, and ending on the dale of
September 7, 1976.
2. That accordingly the Norfolk and Western Railway Company be
ordered to compensate Apprentice Machinist J. E. Hart in the
amount of eight
(8)
hours at the pro rata rate for each day of
his work week assignment beginning on the date of August 9,
1976, through the date of September 7, 1976.
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 axe 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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was the subject of an investigative hearing on July 16, 1976,
to determine your responsibility in connection with the throwing of a foreign
object at approximately 2:20 p.m. at a Proudfoot Consultant employed by the
Norfolk and Western Railway Company and being away from your place of work
assignment a portion of the time between 2:1; p.m. and 2:45 p.m. both on
July 13, 1976."
Following the hearing, Claimant was given a 30-day disciplinary
suspension.
Form 1 Award No.
763+
Page
2
Docket
No. 76+3
2-N&W-MA-'78
The Organization argues that the charges against the Claimant were
"ambiguous and misleading"; and that the Carrier based its disciplinary action
on "mere suspicion" and insufficient evidence.
As to the notice of hearing., Rule
37
of the Agreement reads in pertinent
part as follows:
"Rule
37.
No employee shall be disciplined without a
fair hearing by a desa,onated officer of the Carrier.
Suspension in ,proper cases pending a hearing, which
shall be prompt, shall not be deemed a violation of
this rule. At a reasonable time prior to the hearing,
such employee will be appraised of the charge against
him. The employee shall have reasonable opportunity
to secure the presence of necessary witnesses without
expense to the Company, and shall have the right to''be
there represented by the duly authorized committee. If
it is found that an employee has been unjustly suspended
or dismissed from the service, such employee shall be
reinstated with his seniority rights unimpaired, and
compensated fox the wage loss, if arty, resulting from
said suspension or dismissal "
The Board finds that the charges of which the Claimant was informed were
sufficiently specific to leave no doubt in the Claimant's mind as to what he
was to defend himself against before the Hearing Officer. The consideration
that the Claimant denied the allegations against him does not make the
offenses of which he tras charged less clear. The hearing was conducted
fairly, with full opportunity offered to the Claimant and the Organization
fox his defense.
It is unquestionably true that there are questions of credibility
raised in the record of the hearing, and the testimony constitutes
circumstantial evidence as to the Claimant's actions. He was accused of
throwing a "foreign object" at two of the Carrier's consultants. The object ,eras
neither specifically identified nor recovered for examination, nor was there
testimony that he was seen actually throwing the object. The record is
replete with unconti^adicLed testimony from three witnesses, however, which
would reasonably lead the Hearing Officer to conclude that the event took
place. These include testimony that the Claimant was not accompanied by the
Machinist with whom he was working for the entire period in que soon; the
viewing of the Claimant with his arm in a throwing motion; and the testimony
concerning the "object" itself, axe more than sufficient to outweigh the
Clasmant's simple denial. The Board can make no finding that the testimony
resulted in an arbitrary or capricious judgment by the Carrier. Employees
are entitled to reasonable protection against unsupported allegations, but,
on the other hand, the employer need not be expected to provide the degree
of proof required of a prosecuting attorney before a trial judge in a major
Form 1 Award
No. 773+
page
3
Docket No.
76+3
2-N&w-rte- '78
criminal case. See, for similar conclusions, Third Division Award
No.
21+19
(Wallace) and Second Division Award No. 6911(Noxxis), which in turn refers
to a series of previous awards.
The offense, aired at a satisfactory investigative hearing, is not as
serious as many other disciplinary matters, but nevertheless constitutes
behavior unwarranted from a reasonable employee, as well as being potentially
injurious to others. In this respect, the Board does not find the degree of
penalty inappropriate and sees no reason to substitute its judqnent fox that
of the Carrier.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
osemaxie Brasch - Administrative Assistant
Dat at Chicago, Illinois, this 8th day of November, 1978.