Foam 1 TIONAZ RAILROAD ADJUST= BOARD Award No.
7938
'' ~ `~ ~~ SECOND DIVISION Docket No.
7731
2-C&NW-CM-'79
The Second Division consisted of the regular members and in
addition Referee Robert A. Franden when award was rendered,
( System Federation No.
76,
Railway Employes'
( Department, A. F. of Z. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Chicago and North Western Transportation Comp any
Dispute: Claim of Em
1. Car Inspector John P. O'Connor was unjustly dismissed from
service on March ll,
1977.
2. Car Inspector John P. O'Connor was erroneously charged with
reckless driving and. speeding on company .property; failure to
protect his assignment; and leaving company property for a time
which he was being paid.
3.
That the Chicago and North Western Transportation Company be
ordered to reinstate Car
Inspector
John F. O'Connor with seniority
rights unimpaired compensate him for all time lost at eight (8)
hours per day, dating from March 11,
1977,
until returned to
service, as well as restore his contractual benefits and make hire
whole for any loss of benefits he may have suffered during the
period he was unjustly withheld from 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 employe or employes 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.
Claimant was dismissed from the service of the Carrier after having
been found guilty of reckless driving and speeding on company property,
failure to protect his assignment and leaving company property for a time
for which he was being paid.
Claimant raised the procedural issue of the sufficiency of this notice
as to the failure to protect his assignment charge. We find the Claimant's
position in this regard to be without merit, in that the notice was sufficient
to advise him of the offense with which he was charged.
Form 1
Page 2
Award No.
7938
Docket No.
7731
2-C&VW-CM-'
79
The charges themselves were supported at the investigation by evidence
of probative value. We are not able to resolve the conflicting testimony
at this level. It has long been our position that we will not disturb
the finding of the investigating body, if evidence was presented at the
hearing sufficient to support the charge. Such was the case here.
Given all of the circumstances of the present case however, the
penalty of dismissal is too severe. The purpose of discipline will be well
served if Claimant is restored to duty at the present time without compensation for time lost. Claimant should be offered his position and given 60
days to report for duty. If the Claimant fails to report for duty within
60 days, his right to reclaim his position under this award shall lapse.
A W A R D
Claim sustained in accordance with the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
/ v
BY %~t~t~-
emarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 24th day of
ray, 1979.