Form 1 NATIONAL
RAILROAD
P.DJUSTPENT BOt?R.D nvrar. d
wo. 8190
SECOND DIVISIM Docket TTo. 8116
2-IM-EM-179
The Second Division consisted of the regular members and in
addition Referee Richard R. Hasher when award was rendered.
' System Federation No. 1, Railway Employes'
Department, A. F. of Z. C. I. 0.
Parties to Disrnzte:
( (Boilermakers)
( Indiana Harbor Belt Railroad Company
Dispute: Claim of Er!nloyes
1. That Boilexmaker Roger Odom was improperly assessed a twenty (20)
day actual suspension and a twenty (20), day record suspension.
2. That accordingly the Carrier be ordered to reinburse the afore-
mentioned Boil exmaker zrith all seniority rights unimraired, all.
lost wages, Vacati on and Holiday pay nm-r in effect and any
additional benefits that may be negotiated.
Findings:
The Second D9:riNion 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
dispute are respectively carrier and employe within the rs eaning of the
Railway Tabor Act as approved
June 21,
1934.
This Division of the Adjustment Doard has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On January
28, 1978,
the date of the incident giving rise to this
claim, the Claimant, a. boilexnaker, was woring over-tine
on
the 3:00 P.M.
to 1.1:00 P. ,-. shift. At or about 7:00 P.M. that date the Claimant enter,~d
the office of the Carrier's supervisor and submitted
2,
time card for five
hours of overtime pay. The C" arrier's su,rex~visor advised the Clai na nt that
he was not entitled to the five :-o1,rs pall since he had on_Zy ;rdorhe d between
the hours ox 3:00 P.i". and 7:CO ~.ii. iIe~re, it is alleged that a veflaal
confrontation, instigated by the~Claizant, took place.
As a result of this incident, the Clai_mwnt eras charged, by letter dated
February 1, 1978, yr-1_th co nduc`1in" himself in a disorderly manger
bar
threatening
bodily hair, to the Carrier's supervisor.
Form 1 Ai-rard No.
8190
Page 2 Docket Tto. 811.6
2-rE3-D-M-'
79
An investigation was held on the above-cited charge and the Claimant
was found guilty. The Carrier imposed a 20 day suspension as well as an
additional 20 day record suspension.
It is the position of the Organization that the Carrier's action z'ras
unjust and without foundation, and that the Carrier's supervisor intended
to provoke the Claimant in order that discipline could be assessed. It is
the further position of tide Organizwtaon that the :i.nvesti,,ation ~,-as conducted.
in an unfair at-:osphere since the Ca_~riex's He_nrin~7, Officer badgered the
Claimant and his rebresentative and restricted the Claimant's representative
in questioning tritnesses.
It is the position of the Carrier that tile Claimant -vas g uilty of the
off'ense charged a,;d that
the
di cipline assessed, which fo_'L1oz.red a fair
and impartial investigation, tv~as zrarranted.
The verbal incident trhich is the subject tatter of this claim is
concisely su.arized in one paragraph of test:iinony from the trial investi gati.on
record, The supervisor who z,.-as alleged verbally threatened testified as
folloi.rs
"I was sitting in the off-.ce because everyone was out
to lunch, and i.::"?. Odo-l (16he CI aa:rwnt) ca-.e in through
the rear door, North door I believe it i,:, S~rith his
street clothi,':s on and
.".1i~;:i:V.~'.tC1
2.
tine
c:_rd .or five
(5)
hours cver-brie. from 3:00 P.M. to 8:00 P.M. And
I told h:im I could not accept the time card because
he wacild not be here until
8
o'clock, and. at that
time Mr. xrejci w:~s in the office
~r:ilr.z
:e. P~1f. Yrejci
left for some reason, I think to go do5,ni to the wash
room, and Mr. Odo:n asked me if I Tfrould li?ie to have
ny
ass beat. I asked him if it -was worth his job, and
then he said, I'm the only forenan out here that irould
do something like that, and he doesn't like smart asses,
and then he asked if I vrou1d o outside vritli him.
Then he tore up the tine card for five
(5)
hours and
started to mane a new one out and asked :r..e how matky
hours I should put in. And I asked
hJ,.:-;1,
'v-hat do you
think is fair?' and he asked me if he gets paid
for lunch, and _T s~.-id lie doe if he's here. Then I
asked him if he neded ti°lro off the Company property.
Then he said to forget w'_n4:t lie said. lie said he was
leaving. That z'.~,s about it."
The transcript reveals that the Clai,rant tray have, understandably
been unaware oz the fact that lie -was not entitled to his "beans", a fiftyfive
(55)
minutes lunch breai;. r7owevez~, such a misunderstanding witten it
was corrected by the super-visor did not Just-if-,- the C1aii'?a1YC's veL'bal abuse
and threatening lanwa,ge.
T1ie
are convin cod that tile credible evidence
of record demonstrates that the Claimant did verbally abuse the supervisor
and threaten him.
Form 1 A-vrard
ivo. 819o
page
3
Dochct ITo.
8116
2-IFB-B1,1-'
79
Even if other supervisors of the Carrier may have interpreted the
Claimant's ,right to a lunch more liberally under the rules, the Claimant was
not justified in making any threats or verbal attacks upon the supervisor
who strictly interpreted the rules of the agreement. Therefore, we find
that the Carrier was justified in impossi.ng discipline and we -rill. not distl7.rb
that judgment.
We should note, that the Carrier's Ifearing officer came dangerously
close to invalidating the hearing; process as a result of his be?i-;exam, and
at times adversarial, be:lavior. C4rt~=.a.rL1Tt. < s an invest3.gating of i"icer,
he has the right to ask questions for the: parpoue of developir g a full and
factual record. At the sa::ze time, the Hearing Officer Ins the responsibility
to make sure that -the charged opportunity ed emrloye and.,/or his rer~'esentative has proper
a -D:~ll air.-d 1 a ctu al r ocor d. h1. thCr ;,rhs tile
to also develop ~
Hearing officer' demeanor vas less th_-.t; ex`:'plary, we do not find that his
occasional e:~ressions of bel'.-e:,an ce
r
es`ricted t:-e development of a
full
factual record to the prejudice of the Clai·,=~nt. Therefore, ;'re iri11 not
reverse findings n.ade above but should let this decision stand as notice
to the Carrier that i nvestigations in the
f-
ature should be less adversari,-..l
in nature.
A W A R D
Claim denied in accordance with the above finuigs.
1'ATIOTM1! RULRO^._D ADJt3SMZLE~U
DO"iitD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
~G
A
' ~ W
By ,_'Rosemarie Brasch - A
uarid~is
t ra'tt. ~. is ta=r
Dated
J
Chicago, Illinois, this28th day of November,
19179.