Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. $322
SECOND DIVISION Docket No.
8191
2-L8rN-CM-' 80
The Second Division consisted of the regular members and. in
addition Referee
John B,
LaRocco when award was rendered.
( System Federation No.
gl,
Railway Employes'
Department, A, F. of Z. - C. I. 0.
Parties to Dispute: ~ (Carmen)
~ Louisville and Nashville Railroad Company
Dispute: Claim of fires : '
1. The Cayman Helper R. W. May was dismissed from service in violation of
the current agreement on August 72,
1g77,
and
2, Accordingly, the Louisville and Nashville Railroad should be ordered to
(a) Restore him to service with seniority and a71 employee rights
unimpaired.
(b) Compensate him for all time lost as a result of his dismissal
with interest at the rate of
6%
per annum on all money due him,
and
(c) Pay premiums for his hospital, surgical, medical, group life
insurance and supplemental sickness benefits for the entire time
he is 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,
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 May had worked for the carrier for faun years and was employed as
a Cayman Helper on July 15, 1977. After an investigation held on July 26,
1977,
he_ was dismissed from service on August 32,
1977.
The dismissal resulted
from thre separate charges but all of the claimant's purported misconduct
occurred within a six hour period on J`u3,y 15, 19??. The charges were:
(1) Failure to promptly comply with a supervisor's instructions;
(2) Failure to wear a hard hat while performing assigned duties; and
(3)
Displaying disrespect to a supervisor in the presence of other
employees.
Form 1 Award No. 8322
Page 2 Docket No. 8191
2-L8rN-CM··' 80
The organization contends that the claimant was deprived of a right to a
fair hearing on the charges under Rule
34
of the applicable agreement because a
supervisor., R. P. Rob inson, played several different roles at the hearing sad he
was intimately involved in the events leading to the latter two charges. Next,
the organization asserts the evidence presented at the hearing failed to support
the charges. The carrier contends the investigation was properly conducted and
the evidence supports all the charges. Finally, the carrier argues, on a
eumu3Ative basis, the claimant's three offenses justify dismissal.
Whenever a carrier supervisor who is a critical witness at an investigation
also engages in other quasi-judicial roles at the hearing, the carrier assumes
the risk that the multiple roles of the supervisor could deprive the claimant of
his right to a fair hearing, Here, Mr. R. P. Robinson was a crucial witness
since he
observed
the claimant's conduct, preferred the charges (including the
two charges in which he was involved) and signed the letter assessing discipline.
The record is clear, however, that he did not control the investigation and he
did not conduct the hearing. While we believe his multiple roles could have
denied the claimant a fair hearing within the meaning of Rule 34, in this case
they did not. The claimant had able and canpetent representation at the hearing.
He cross-examined carrier witnesses, presented his own witnesses and testified on
his own behalf. The hearing officer was an administrative assistant who had
no known connection to the facts of the case. Because the hearing officer
allowed the claimant to exercise his rights under Rule 34 and because the
supervisor's multiple roles did not prejudice the claimant, the hearing was
fair.
As s reviewing body, we lack the authority to weigh the evidence at a
hearing, and we must not substitute our judgment for that of the carrier as long
as the carrier's decision was based on substantial evidence in the record. Here,
the record must disclose substantial evidence to support the finding that the
claimant committed each of the three offenses. We conclude that the carrier
failed to proffer substantial evidence supporting the charge of displaying
disrespect to the supervisor but there is sufficient evidence demonstrating
violations in the other two charges.
The claimant failed to timely report to the Stores Department until at least;
50 minutes after he was given a direct order to
immediately
report to the Stores
Department, The trip frown the Fabrication Shop to the Stores Department normaLl,Zr
takes appraxi.mately five minutes. Originally, the carrier was going to punish
the cart by docking his pay for the
45
minute period. Events later in the day
escalated the punishment. However, the claimant was clearly insubordinate.
Several hours, thereafter, claimant was not wearing a hard hat while
operating a forklift. The organization's defense is that the hard hat rule was
never previously enforced with disciplinary action. The moat pertinent portion
of Mr. Robinson's testimony concerning lax enforcement of the hard hat rule was
"Q. Mr. Robinson, have you, ever observed any other equipment
operators not complying with the hard hat rule?
A. Yes.
Q. Mr. Robinson,, what type of discipline action, if any, was
imposed upon these-persons?
Form 1
Page 3
Award No. 8322
Docket No. 8191
2-Lm-cm-,8o
As in the case with Mr. May,
as
well as any other
employee, that I encounter., that is not wearing their
hard hat, my first question is 'Where is your hard hat' the
next standard question that I ask is 'Don't you know that
you are suppose to be wearing your hard hat at all times -
Then I instruct the Employee to go and get their hard hat on'.
Q. W. Robinson, why did you. waiver frown this practice 3.n
Mr. Mays case?
A, I toldMr, May the sane thing that I tell everyone else.
Q. Mr. Robinson,, how many men have been charged in an
investigation for not weatiM hard hats, since you have
been Manager of the Car Shop?
A, In my (8) months assignment, there have been clone," ·
The Testimony reveals that the claimant received the same treatment as all
other violators. Even though there had been no disciplinary proceedings for a
hard hat violation in the last eight months, other employes may have promptly
obeyed the supervisor's order to wear the hat without resorting to abusive
language. The employer is rightfully and vitally concerned about safety violations
and must impress upon employes the necessity for wearing safety equipment. Thus,
any past waiver of eAforcement of a safety violation must be proved by clear and
convincing evidence. The supervisor immediately reprimanded the claimant which
was consistent with past practice.
Last7y, because of the above two incidents both the claimant and his
supervisor had reached the boiling point. The supervisor, in a threatening
fasbtoe,.shoved his finger at the claimant while the claimant taunted the
supervisor by staring at the supervisor (and moving his lips) as he drove by his
forklift. Tempers flared and intimidating words were exchanged. The verbal
fight was caused by a combination of the claimant's anger arising from receipt
of the reprimand for the above described violations and the supervisor's
provocation. There is insufficient evidence to support the charge of displaying;
disrespect to a supervisor and thus the carrier's discipline was excessive, The
two proven violations do not, under the circumstances, warrant a dismissal. The
claimant should be reinstated without any back pay, but with his seniority rights
unimpaired.
A W A R D
Claim sustained only to the extent consistent with our findings.
NATIONAL
RAILROAD ADJLTSTM= BOARD
By Order of Second Division
Attest; Executive Secretary
National Railroad Adjustment Board
~enarie Brasch - AdministraL3.ve Assistant
Dated at Chicago, Illinois, this