Form 1 NATIONAL RAILROAD ADJUSTMEirT BOARD Award No.
8086
SECOND DIVISION Docket No.
7930
2 -NRFC-Ew-'
79
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered,
( System Federation TTO. 1, Railway Employes'
( Department, A. F. of Z. - C, I. 0.
Parties to Dispute: ( (Electrical Workers)
( National Railroad Passenger Corporation
Dispute: Claim of Fmployes:
1, That under the current Agreement,
electrician
D. A, Taylor was
unjustly suspended from the cei7ia_ce of the Nati-ona-1 Railroad
Passenger Corporation (Aintrak).
2, That, according
ly, National F,al 1-cad Passerzj~,er Corporation be
ordered to rescind
the
forty (40) days suspension and rnaTze whale
for all i-,e,lost on account of sv:.spans;.on.
f ind:i n~;s :_
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
RailTray Tabor Act as approved dune 21,
193,
This Division of the Adjusi,ment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was suspended for unauthorized absence from duty. This
scheduled tour of duty was from x+:00 PM to 12 Midnight.
At about
7:30
PM on t he night in question, Claimant' s Foreman requested
him to blow the condenser, but was told by Claimant that he was going out
for a fish fry. The Foreman instructed him that "no one was to leave the
property".
Shortly thereafter, the Foreman returned to the scene to request
Claimant to assist another employee who was working on a compressor, but was
unable to locate Claimant. The Foreman testified that the job assigned
Claimant, to blow the condenser, was not done at the time.
At about
8:30
PM, the Foreman observed Claimant walking by his office
and asked him to explain his whereabouts. Claimant stated that he had been
looking for a mask to blow out the condenser at the Electric Shop. The
Foreman testified that he had gone to the Electric Shop, among other
Form 1 Award No.
8086
Page 2 Docket No.
7930
2-NIZ11C-EW-'
79
locations, when trying to find Claimant; that Claimant used obscene language
during the conversation between there; and that Claimrnt stated that he
could not leave thc:property because he did not have a car. On this last
point the Foreman statcd that 'Ln the
company
of another employee, they
found Claimant's car "underneath the corzcaurse". This location was subsequently
identified as "underneath a br'..d;e on Curtiss Street".
The employee, whose request for assistance pro5npte.d the Foreman's
search for Claimant, testified that he s:-Lw Claiina,nt 01)-:1v9ng away shortly
after he had requested the Foreman for .~:s^~.;~ta.tZ::c® !;-l a:ddeci
trz_Mi:
the
Foreman asked him to accompany hixn to laal-, for Clai!,:Rar:t 's car at i is usual
parking place, but it was not there.
Claimant denied leaving the property. Ile asserted that he was looking
for a mask until about
8:30
~r4 but that lee than .pray eauad to blow the
condenser without the mask "becamse theta z~.s not one available `or me".
Ills Foreman testified, hmrevery that Cla:iv<~:ant had been :i.ssuad
az
m.°sl~; that
Claimant
did not let
~ri.T~
beast between 7: jO and
8;30
7~t4q thaa h:! scold not
find or locate his
T:R.-`LSX;
and thw'G there were other o:asla avaa.l<:zbi.e, sta,tin~:
"We have masks bare in the office".
The record discloses conflicting testimony an the :Factual issues
which .present questions of the credibility of witnesses and the weight to
be given their testimony. It :W not our .i1arzct:iazx to r`~>~s uc;c>z2 the credibility
of witnesses or determine the truth of conflicting
testimony
or evidence.
The credibility of wimesses and the weight to be given their te~Ntimony is
for the trier of facts to dete,-!nine. We will not disturb discipline case
findings that are supported by credible, though controverted, evidence.
There is substantial. evidence in the record that supL,orts the charges mach.
We will not substitute our jud_ynent for that of the Carrier's and will,
therefore, deny the claim.
Petitioner asserts procedural deficiency, stating that although "the
investigation has been conducts=d in a fair manner ... There is a question of
impartiality of the Bearing Officer". We perceive no basis in the record
before us to substantiate a charge of prejudicial conduct on the part of
the Bearing Officer. Any possible procedural error was not prejudicial
to Claimant and not fatal to the outcome of this case.
A W A R D
Claim denied.
Form 1. Award No.
8086
Page 3
Docket No.
7930
2-NRFC-EW-'
79
NATIONAL RAILROAD AD,-)MTI,= BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Ad~iustment Board
j
__._r ~ ~.-----_.---
. -.,
- ~
f
r
~marie B;.-asch - Acbnin:L:axwtive Assistant
u
Dated s4L Chicago, .'I:LIinois, this 12th clay
of September.,
19790