Form 1 NATI01`TAZ RAILROAD ADJUSThE1JT BOARD Award No.
8082
SECOND DIVISION Docket No.
7903
2-C&0-h1A-'
79
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered,
( International Association of Machinists
( and Aerospace Workers
Parties to Dis rnzte:
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. The Chesapeake and Ohio Railway Company arbitrarily and capriciously
suspended P~:acha mist Herbert Schoutens
from
service for a period
of thirty (30) days in connection with investigation held on
June
14, 1.977·5
2, Accordingly., Machinist Herbert Schoutens should be
compensated
for a,7_1 t3_m~ lost, credited :f'o~ all fringe benefit:, attached to
his employment, and his record cleared.
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. Tune 21,
193+,
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 charged with leaving his assigned work area without
permission; conduct unbecoming an employee of the company; and threatening
bodily harm to a fellow employee, Mr. Pollice. The same charge was also
directed at three other employees.
The basis of the charge was an allegation by Po3lice, a machinist
working on a locomotive in the Roundhouse, that four men, including Claimant,
threatened him with raised hammers and in profane language, said that "They
would get him" if he ever came around the Diesel House where they were
employed.
The Grand Rapids Shops where the employees involved are employed,
consist of a roundhouse, diesel. house, car repair shop and back shop. The
roundhouse and diesel house are in close proximity to each other. Employees
who work in these two facilities share a common locker room and lunch room
Form l Award No,
8082
Page 2 Docket No.
7903
2-C&0-MA-'
79
within the roundhouse structure. During the course of a day employees
regularly traverse between these two buildings to obtain tools, parts,
coffee, or lynch.
On the night of the alleged incident, Claimant (and the three other
employees charged with the same offenses) went from the diesel house to the
roundhouse in order, they stated, to obtain hammers and other tools needed
for their job. Although Carrier asserted that permission wars required to
go from one facility to another, Claimant's foreman testified. that it was
common practice .for employees to get tools in the roundhouse without the
foreman's pemisss.on or knowledge.
Testimony
was also presented that tools
were kept in the supply rack in the roundhouse and that no instructions
were issued by supervisors that empl.oyee~: were not to leave the diesel
house far tools.
The Roundhouse Voreman corroborated the testimony that supplies were
kept in the roundhouse and -that "on ooca:;ion", diesel employees car.qe there
for supplies and. tools. He also :stated. the roundhouse employees at times
went to the diesel house for parts or supplies.
The hearing also by-ought a-ut that it was not until the day after the
alleged I.ncident. That the diesel house foreman instructed employees not to
leave the diesel house without permission.
The diesel house foreman testified than some diesel house employees eat
lunch iu the diesel house, others in the lunch room, which is attached to the
roundhouse; that no permission is required to go from the diesel house to
the lunch room at lunch time; and that the same practice applies to coffee
breaks, which on the shift involved, are usually taken at about 1:30 A.M.
With respect to the charge of "conduct unbecoming an employe of the
Railroad Company", the roundhouse foreman responded in the negative to
the question:
"Did Mr, Schoutens (Claimant) behave in an abnormal manner
arty time he was in your presence?"
Pollice stated at the hearing, when questioned by Claimant's representative,
that Claimant neither approached nor threatened him; that Claimant said
nothing to him; and that he "saw him at the head of the track that is all".
Pollice also testified that the threats against him were made at about
3:10 A.M. Claimant and the other employees accused indicated that they
had gone to the roundhouse for the tools right after their coffee break,
between 1:30 and 2:00 A.M. Still another employee, Mr. Oleiainski, who was
working near Polhce on the locomotive at the time of the incident testified
that he heard one of the four men charged, but not Claimant, talking to
Pollice at about 2:10 A.M.
Form 1 Award No. 8082
Page
3
Docket No.
7903
2-c&o-lea-'
79
The record of the investigation, in our judgment, does not support
Carrier's conclusions with respect to the charges filed against Claimant.
The evidence is extremely inconclusive, based on mere suspicion. There are
too many discrepancies, as well as direct statements by Pollice that
Claimant did not threaten him to uphold Carrier's finding that Claimant is
guilty of th,e offenses charged, Follice testified that he was not
approached, much less threatened by Claimant; that he "never had arty
confrontation with" Claimant.
The Roundhouse Foreman, the four employees charged, and Olewinshi, who
was working on the engine with Pall:ice at the time, all stated that the
alleged incident took place at about 2:00 A.IJ. Pollice, in his original
submissions, and at the hearing, lasted the time as 3:10 A;u4.
The chain of events pointing to Claii.ant's alleged guilt is Inconclusive
.
The roves tigrztion did rot clearly demonstrate that Claimant is guilty of
the charges levelled af;aitzst hi:::. 2dere suspicion is not saf'f'icisnt
to
prove
that he coLr.:nitted the off :rises for which he was da.sCip17_Y:ed. Consequently,
will
e
-vri
sustain
the clui:n.
Claimant shall be entitled to recover tho loss in his pro rata rate
of pay for the period of
his
stzsp::ns1_on, less any compensation z~rhieh he may
have earned in other gainful employment during said period.
A V A R D
Claim sustained in accordance with the above Findings.
NATIOI'14h RAILROAD ADJ?TSTIvEN`I' BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
/r,---
By
Rosemarie Brasch - Administrative Assistant
Dat
at Chicago, Illinois, this l2th day of September,
1979.