Form 1 Award No, 7782
 Page 3 Docket No. 7623
 r_-MP-CM-79




                          By Older of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

                      E.~ ....-


    a;~s 1-Ea:ci a Brasch - f':cLninisl; xa~iv:: Assistant


Dated a-ti. Chicago Illinois this 4th day of January, 179.

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 Form 1 NATIONAL RAILROAD ADJUST14ENT BOARD Award ITO. 7783
 SECOND DIVISION Docket NO. '16+6
 2-c&rrW-cps-' 79

    The Second Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award nr~,s rendered.


                ( System Federation ITO. 76, Raihray Employes'

                ( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

                (

                ( Chicago and North N?extern Transportation Company


Dispute: Claim of Employes:

        1. Freight Car Inspector Alex Novakovic -Gras unjustly assessed sixty (60) days suspension effective November 18, 1976.


        2. Freight Car Inspector Alex Novakovic was erroneously charged with instructing and/or suggesting to carman Bruce Scaramazzi that he falsely testify- at his investigation of October 20, 1976.


        3. That the Chicago and North Vlestern Transportation Company be ordered to compensate Freight Car Inspector Alex rdovakovic for all time lost .plus atiy other benefits he would have been entitled to had he not been unjustly suspended.


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 emplnyes involved in 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.

    Parties to said dispute waived right of appearance at hearing thereon.


Freight Car Inspector Alex P?ovakovic, who serves as Local Chairman of Cayman Lodge 1076, was ordered to appear fcv investigation on November 3, 176, in reference to the following, charge:

        "CT,ARa; Your responsibility for instructing and/or suggesting to carm.an Bruce Scaramuzzi. that he falsely testify at :investigation of October 20, 1976 that he was not sleeping wlil.e on duty October 9, 19`T6, when he had already told you that he vra.s sleeping while nn duty October 9, 1U76."


I
 Foam 1 Award No. 7783
 Page 2 Docket No. 761.!.6
 2-c8crrw-CM- t 79

 Followang the hearing, TTovakovic received a 60-day disciplinary suspension. The Carrier thus head rTovakovic responsible fox what it considered his improper actions as a union official, rather than as one of the Carrier's employer. In so doing, the Carrier takes on a heavy burden of proof in defense of its action, since =lovakovic is protected by the applicable Agreement in certain rights as an employe, and is also entitled to nonoc3.iscriminatory treatment as a union official.

 The background facts leading to the accusation, against the Claimant may be briefly siLnznarized as follows:

 Caraan Bruce Scaramuzzi (and another em ploye) were discovered in a waycar on October 10, 1976. Scararnuzzi was subject to an investigative hearing on October 20, 1.976 in tr,~at he had been "found sleeping" on the waycar. Prior to the hearing, Scaramuzzi had a conference with Novakovic and Bogdan Vitas, who wend to represent him. During the hearing, Scaramuzzi denied he eras sleeping. After the hearing, word was given informally to the Organization representatives teat Scaraniuzzi would be dismissed, in part because he was "lying" when he denied he was asleep. This information was conveyed to Scara:mazzi. On October 21, 1976, Freight Car Department Manager l·1. C . Push (who had conducted the Scaramuzzi hearing) received a letter from Scara_muzzi as follows:

        ":L went for an investigation on October 20, 1976 at 1 ; 30 p.m. alt that tune two representatives for me asked me what happened for no to be getting investagate. I explained to them that I was caught sleepinin a way car on the Rip Round around. They asked me what happened and I explained to them that T was caught sleeping by Gen. Bowens on that night. They told me that it eras my word against his that I should go in and tell then that I was not sleeping. I was sleeping on that night and I told a few people that I was sleeping. I was going in there to tell. the truth but they said there was no witness that I should be able to get away w~'lth it. I am making this statement on my own free will. I was sleeping that night and I'm guilty of it.


                          Isl Bruce Scaramuzzi FCR North Rip."


With Scaramuzzits petinission, he eras subjected, by the Carrier, to a polygraph examination which appeared to buttress the validity of Scaramuzzi's accusations in his letter to F~zgh. The char -re against utova,hovi_c, the subsequent hearing, and the disciplinary suspension for Novahovic followed.

 The Board will find that the Carrier has ,simply not met the burden of proof required to impose a discipli.nar;yr penalty on art eyploye/uni_on official for "instructing and/or suggesting" that an ei:.pl.o1,re/witness testify falsely.
 Form 1 Award No. 7783
 page 3 Docl:e(; No. 762,6
 . 2-C;&NW-CM-' 79

 At his oYm hearing on October 20, was Scaramuzzi lying or telling, the truth? Neither the Carrier nor the Board can hnow for certain. He might have been asleep, but lied in saying he was awake; or he might have been awake (as he testified with some emphasis, since he recounted the discussion between the Carrier official and his fellow worker before the Carrier official turned to him) and then lied in his letter to Pugh in an attempt to gain leniency (since he had learned that the Carrier believed he eras lying at the hearing).

 If he lied at the hearing, he is hardly the most reliable witness to
 be the sole Go a 60-day suspension of Novakovico If he lied in
 the letter to Pugh, then of course uTovahovic is blameless.

 What is also not known is what Scaramuzzi said to TfOVakovic and Vitas in preparation just before the heating. If Scaran.uzzi had said, as is quite possible, "I wasn't sleeping" it would be responsible for the Union representative to advise, in effect, "Then say so, at the hearing; it's your word against theirs." What the Board is asked to believe, and this is the only explanation which -vowld warrant possible disciplin~try action against Tvovakovic, is that Scaramuzzi said to his Union counselors, "They caught me; I was asleep." To which the Union representatives (one or both) would 'nave to reply, in effect, "Go in there and deny it". The Carrier needs far mote proof than it has offered to show that this dialogue actually occurred.

 Certainly-, Scaxazmazzi's testimony at either his own hearing or at Novahovx.c's hearing is hardly helpful. How did he observe what happened to his fellow- employe while he was asleep? Or is that account also false? The use of the word "they" in his letter and then his certainty that only Tdovahovic advised him is, at best, confusing.

 This 1.S not a case of an accusation against a union official fox an action taken in direct confrontation with management; it is limited to a hurried exchange between a union representative c-end an inexperienced and no doubt frightened accused employe.

 The findings of the polygraph test, administered on behalf of the Carrier without the knowledge of the organization, do not otherwise convince the Board. A more fair and impartial approach might have been to suggest such a test fox' both the accusing employe and Novakovic, but such was not done.

                      A W A R D


    Chasm sustained.


I
 Form 1 Award No. 7783
 Page 4 Docket No. 76-6

                                        2-CF;I~IW-CM- f 79


                          1VATTOi,YAT RAILROAD ADJfTST14FUIT BOARD

                          By Ordex° of Second Division


Attest: Executive Secx·etary
 National Railroad Adjustment Board

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    i~.aax'ie ~r_asch - ?W:inist,ts:u:iv~e.~'Lssis~anz

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Dated at (Chicago, Tlli.nois, this 4th day of January, 1979.

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