Form 1 NATIOTaZ RA11ROAD ADJTJSTMENT BOARD Award No. 8015
SECOND DIVISION Docket No.. 7501-I
. 2-CR-I-' 79

The Second Division consisted of the regular members and in addition Referee Ralph W. Yarborough when award was rendered.

( James W. Bryant

Parties to D--s~:ute:

Consolidated Rail Corporation

Dispute: Claim of Exr!ployes:

Discipline dismissal of Electrician James W. Bryant by the Penn Central Railroad. Company.

2. That, accordingly, the Consolidated Rail Corporation be w·del ed

to reinstate Electrician J. Gl. Bryant, to his former position with

seniority rights unimpaired and compensated fox all lost time.

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 ox employes involved in this disrn;.te ate respectively carrier and employe within the meaning of the Railway Labor Act a s approved June 21, 193+.

This Division of the Adjuztmer_t Board has jurisdiction over the dispute involve(! herei. n.

Parties to said dispute were given due notice of hearing thereon.

This case involves the discipline dismissal of Electrician James W. Bryant by the Penn Center Railroad Company for "insubordination, falsiz'~,V~ing work reports, and refusing to --Leave Company property after being asked to do so by irmediate supervisor and rail-road police, on August 24, 1975; 8-21-75 hour late; 8-22-75 1 hour late; 8-23-.75 1 hour 45 min.
, late; 8--24-75 1 hr, 10 min., late;" and such notice of August 25, 1975 further states "you axe hereby held out of service until further notice,"

Claimant Bryant,, age 39, an employe of 71 years standing, held a regular ll P.M. , to 7 A.M., assignment at the Carrier's 59th Street Engine House in Chicago, Illinois. On Sunday, August 24, 1975, claimant Bryant not having arrived for his job after 12:00 midnight, Carrier called (at 12:30 A.M.) in Electrician D. T. Keinex to work the, vacancy, The late arrival of Mr. Bryant left Carrier with a dual occupancy and at 1 A.M.., there ~vras a confrontation between Foreman =Broum and Electrician Bryant which ultimately resulted in Cla:3riant Bryant's teeing escorted fxarn the carrier company property by the company police.
Form 1 Award No. 8015
Page 2 Docket No. 7501-I
. 2-cR-I-'79

The notice letter of suspension of-August 25, 1975 was followed the same day by a notice of trial the date being set for August 28, 1975. After a number of postponements the trial was held September 22, 1975 and some tune subsequent to the trial proceedings on September 22, 1975, Claimant Bryant was notified of his dismissal on an undated notice form.

Rule 7-A-1 provides that appeal from discipline must be made in writing by the employe or on his behalf' to the Superintendent Labor Relations, within 15 calendar days after receipt of written notice of dismissal. Carrier stoutly insists this Bcard lacks jurisdiction because an appeal was not perfected and that Claimant has no rights to have the case heard on the merits on appeal.

The Record. shows that Claimant J. W. Bryant signed a notice dated 11/7/75 addressed to H, E. Stevens, General Foreman, and R. S. I-Iauth, Master Mechanic, at the 59th Street Er.:gi.ne House, and that a separate notice, undated, addressed to Mr. S. D. Dutrow, Superintendent, Labor Relations, to whom the notice of appeal was required by the rule to be given, was handed to Mr. Tony Steigler by Claimant (intended for Dutrow). Carrier has filed an elaborate, comprehensive, well-argued case that this Board lacks jurisdiction to hear this appeal because the notice of appeal was not timely given. The Carrier admits that, the appeal letter written to the General Foreman and Master Mechanic was received by them. The Claimant, in the handling of his separate notice of appeal to Mr. S. D. Dutrow, Superintendent Labor Relations (the person to whom the appeal was required by Rule 7-A-1 to go), gave it to Mr. Tony Steigler and told him to send it through the Company mail and contends 1.t went through the RRS (Railroad Mail Service). Mr. Dutrow states that he never received the notice. Steigle;c, who was Secretary of ZBEW Local 1831 at. the time, stated on oath that Bryant handed him the notice on Nov. 7, 1975 and that he, Steigler, sent the notice to Mr. Dutrow through the Company mail drop at the 12th Street Yard. Carrier states that it was totally unrealistic for Claimant; to trust his mail to somebody else to mail it for hiin through the unreliable railroad mail service. Due to the fact that notice of appeal was timely given by Claimant to the Secretary of the Local Electricians' Union, to be sent through the railroad mail service to Mr. Ihutrow, that the notice of discipline is undated, and the time at which it was imposed between the date of hearing, September 22, and the date of Claimant's attempted notice of appeal of November 11, 1975, is uncertain, we hold that the record is insufficient to require us, as a matter of law, to hold that the Board has no jurisdiction to consider the merits of the case, and that as a matter of law, the appeal was not perfected.
Form 1 Award No. 8015
Page 3 Docket No. 7501-I
2-CR-I-'79

While the evidence is unclear as to the notice and there is no clear and compelling proof that the notice was properly or adequately given, there is evidence that Claimant was attempting to give written notice within the fifteen day time limit we will resolve that doubt in favor of the Claimant. Rule 7-A-1 does not require that notice of appeal be either hand delivered or that the appeal must be sent by registered or certified mail as in the case of certain Court Rules. The Claimant contends that his notice of appeal was submitted to three officers - supervisors of Carrier, within nine days after the alleged date of the undated G 32 disciplinary action was submitted to him. We will proceed with the merits of the case.

Both the Carrier and the Claimant strongly argue respectively that there was, or was not, insubordination.. The Claimant contends that there is no record to support the di smisssal. of the man with 11 . years service. Rather than base the decision on the argwments of the parties, of pull out individual sentences from the testimony to support a position taken, we believe that a clearer picture of the entire events of that night would be gained by quoting at this point the statement by Gang Foreman Brown, with whum Claimant had his first altercation after ar;c_ving late on the job, and then quoting the statement of the Sergeant of the Penn Central Police as to what happened after he received a call for aid and went to the locomot-ive inspection area in the 59th Street Station.

The statement of Gang Foreman Brown is as follows:

"I was earning up from the pit and saw Mr. Bryant go between tracks #2 and #3. I met r~1r. Bryant and told him he could. not work that night because I called in another electrician. I told him that T didn't know if he would get paid for the time he had been there. I told him he would have to go see his Union man or Mr. Stevens in the morning. He then said that I was interfering with his beans, and I told him I couldn't do anything about that. I took for granted that he was going home, as his car was parked at the pit. I checked the time and then went out the south doer because my laborer was sitting and waiting for instructions. When I returned to the shanty I saw that Mr. Bryant was behind the desk signing off work reports. I told ham he couldn't sign off arty work reports because he hadn't even looked at the units and I reminded him again that he wasn't on duty, that he was supposed to leave. He told me that was his job and he wasn't going to leave unless he had same witnesses to prove that he was forced to leave.

Then I reached across the desk and picked up the work reports that he was signing arid rolled them up and put them in my pocket. That was about 1:20 A.M., because ULG 39 was already on the pad. Mr. Bryant told me that T couldn't send him home, that I didn't have the authority to send him home. I stood at the steps and he told me to (vulgarities omitted) at which time I pulled out my radio and called Mx'. Horgan and told him to call the railroad

Form 1 Award No, 8015
Page 4 Docket No, 7501-I
2-CR-I-'79
"police. I stood beside the building and told my electrician,
D. Kiener, not to get on the engine. We waited about 10 or 12
minutes before Mr. Horgan and the railroad policeman came. They
asked me where was the man I was having trouble getting off the
property, and I told them that he was in the shanty but I
believed he was now on one of the units. So Mr. Horgan,, the
railroad policeman and I walked over to the tracks and watched
Mr. Bryant jumping from the second to the third engine and the
policeman asked him to come doom. He asked him to come down
about 5 tunes before he even got any response out of him. Mr.
Horgan asked him was he on duty, even though he knew he wasn't,
and he asked him did he make out a time card. Then he explained
to Per. Bryant that he was told not to work two electricians on
the same job and that another man was already working on his job.
The policeman again told him to leave the premises, and he told
the policeman that he was not leaving until he got some witnesses.
Then Mr. Bryant started waving his flasha::ight, that he had in
his hand, around and -the police.~an told haxn that he would have to
leave the Compa,yy property now, or he mould have him forcibly
removed in handcuffs. After a few more choice words from Mr.
Bxyarrt, he went to ha.E car and left, but not before saying that
he ~~ra,s going to (vulgarity deleted) Mr. Ilorgan and self and
that he knew just how to do it too."

The altercation of the Claimant with Gang Foreman Brown resulted in the calling of the Penn Central Police; the railroad pol:ic~man called was Thomas C. Balciu.s, Sergeant of Penn Central Police, 32 years of age, employed with the Penn Central police for nine and a half years. His initial statement of what happened is as follows:

"At approximately 1:20 A.M.,, I received a radio cumsmnication from my headquarters to come to the enginehouse, that they were having trouble w:;th an employe. Upon my arrival I spoke with a IT. Horgan who advised me that a Mr. Bryant, electrician, came late to work and was asked to go home due to the fact that another employe was called in to fill his job. Mr. Horgan showed me a sign-in book whe;^e Mr. Bryant had signed in at 12:0 A.M. I questioned Mr. Horgan as to what his starting time was. He advised me it was 11::30 P.M. Mr. Horgan then told me to see Doc Broom wino informed me that Mr. Bryant was instructed to leave the property, that another gentleman was called in to take his place. He also related to me that he observed Mr. Bryant signing locomotive inspection reports and that he had not did any inspections on those engines. I asked him where Mr. Bryant was and he advised me that he was on an engine at the fuel track. Mr. Horgan and Mx. Brown accompanied me to the engine that Mr. Bryant was on. I called to Mr. Bryant by name, advised him I was a Company police officer and to please carne down off the engine. He did not do so. At this time I advised him what the gang foreman had tole me. Then Mr. Bryant stated to me that he was not going to go home. I informed him that he had a right to his grievances

Foam 1 Award No. 8015
Page 5 Docket No. 7501-I
2-CR-I-'79
"if there was any discrepancy as far as him working. He became
very agitated with Mr. Brown and Mr. Horgan when I asked him to
leave the property; he flatly refused. He said this was based on
his coming in late. I then asked him to leave and that he was
technically trespassing on company property, and as an officer
of the company I would have to see that he left the property.
He then made statements to me concerning the fact that he already
had a lawsuit against the company and that he -w-as going to
(vulgarity deleted) the company again. I sent away the two
gang foremen and instr'acted Mr. Bryant verbally and forcibly that
he would have to leave the company property. He said that he
was going to get a witness and case d.oi~m and made a call on the
company phone. I advised him again that he was trespassin; and
that if he would not leave T would effect an arrest. After
that we started zra.'lYina ~to where his car was parked, then he
remarked that no one was going to tell him what to do, that Cod
was going to be the only one. At this time he said that Mr. Brown
had pushed hire i n front of a desk in the office. I asked him if
he was hurt and he said that he -was not and left the property at
l: 40 A.M. I then completed my itnrestigation by an inspection of
the work ,reports fox company records as PvW. Bro-vrn agreed, and T
initialed and dated those records as such because T knew they could
b e used as evidence. I then went to the sign-in book and reported
the date and time he reported fox duty. This information was
reported to nr office.

Q. Mr. Balcius, did Doe Brown and P.7x. Bryant have any words while you were there?

A, After my announcement to Mr. Bryant as to W capacity on the railroad and to depart the premises, Mr. Brown called out to him that he would not be needed and that he had called in someone else.

Q, Did Mx. Bryant refuse to leave the first; second, and third tame you asked him to?

A, Yes.

Q. You were wearing a unii.form, weren't you?

A. Yes, sir.

Q. When you saw Mr. Bryant., was he on top of a unit?

A. Yes sir, I observed him crossing from one engine to another.

Form 1 Page 6

Award
Docket

2-CR-I-'79

"Q,. Did you notice arty signs of him being hurt?

A. No sir.

You say Mr. Bryant did not leave until you threatened him -with arrest?

A, That is correct,"

8015
75x1-z

There was extensive cross examination of these and other witnesses and a claim by Bryant that Gang Foreman Brown had pushed him down and injured him in taking the work reports away from Claimant.

The basic contention of C1W :_nant Br;,a:nt is that after L years of service, dismis~aa under these c:ircvmstances is harsh and unreasonable. We might agree with the Claimant it: his misconduct that night was an i solated personal affair calculated only to affect himself and his relations with his immediate superior, :i3rovm, Hmaf=ver, the matter is far more serious than that, as Claimant -rrr~-~s jv2-:ping from engine to engine and signing work reports before he had bean on the engines. Falsii'ying the work reports was a major action that could have ha~3. very serious consequences, if they had been believed and no flu°-cher inspection had been made. Loss of life, or nage to property could result when an engine in need of r epairs went back into service -vrithout the performance of necessary repairs. "In this case, electrician iiiener had to replace a dynamic braking circuit which Claimant said he serviced but in actuality had not,"

The National Railroad Adjustment Board has often held that the seriousness of an offense and the tragic events that may have resulted therefrom are the proper measure of discipline. Many cases have been cited and argued by the parties, the Claimant contending that the record quoted above does not show insubordination, the Carrier that it does show insubordination; the Claimant contending that the matter was too minor to justify dismissal after 11 years of faithful work; the Carrier contending that the insubordination, falsifying of work reports, late appearance for work, that the discipline assessed was entirely justifie3 and that the claim should be denied.

We are unable to say in the light of this record, a~portion of which we have quoted above, and the mazXy questions and other facts -pulled out with elaborate cross examination by able representatives of both the prosecution and the defense, that the judEpont reached was unreasonable or not supported by substantial evidence in the: Record.

Believing that there is substantial evidence in the Record to support this sentence, harsh though ii; may seem, we feel that there are insufficient grounds for us to hold that it was capricious or unreasonable as contended by the Claimant.

A W A R D

Claim denied.
'Fo,rm 1 Award No. 8015
page 7 Docket No. 7501-I
2-CR-z-r79
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

~~;o
Byl

einar3e i3rasch - Administrative Assistant

Dated a - Chicago, Illinois,, this 1st day of August, 1979.