Form 1 NATIONAL RAILROAD ADJUST= BOARD Award No.
8378
SECOND DIVISION Docket No.
8334
2 -CR-MA-'
80
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Fatties to Dispute:
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:_
1. That Machinist Craig M. Denton was improperly removed frcen service on
July 2, 1978,
and subsequently, unjustly dismissed from service on
JtL7,Y
19, 1978.
2. That Machinist Craig M. Denton be returned to the service of the
Carrier with seniority -unimpaired and be made whole for all wages
lost, and for any and all wages lost, and for arty and all benefit
losses incurred in accordance with Controlling Agreement J-1-(e)
and existing law, if any,
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,
1934.
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 discharged from service as a result of an incident which
occurred on July 2,
1978,
on Carrier's property. Cause for said discharge was
initially cited as "insubordination in that you were told to perform your
duties .., and failed to do so, and also allegedly used abusive language ,..
(and) ... further alleg.:dly threatened Foreman ... with physical violence ..."
Carrier contends that sufficient evidence was adduced at hearing to support
its position. Further, Carrier contends that Claimant's Organization's July 25,
1978,
correspondence is an acquiescence of Claimant's guilt herein. Lastly.,
Carrier maintains that Claimant's actions relative to this discharge incident
coupled with his relatively short tenure as employee of Carrier demonstrate
him to be unfit for further employment with said Carrier.
Claimant maintains that he did not use abusive language toward his
supervisor nor did he threaten supervisor with bodily harm. Also Claimant
disputes Carrier's allegation that his actions were insubordinate in that the
Form l Award No. 8378
Page 2 Docket No. 833+
2-CR-MA-'80
Claimant did not receive any direct order frown his supervisor. Additionally,
claimant's organization argues that Carrier's failure to include charge of
"threatening of bodily harm" in final statement of charges constitutes abandonment
of this particular charge by Carrier.
This Board is respectfully cognizant of the appeallate nature of its
jurisdiction in discharge cases, and as such, the Board acknowledges that its
function is confined to determining whether: (1) Claimant was afforded a fair
and impartial hearing; (2) the finding of guilty as charged is supported by
substantial evidence; and
(3)
the discipline imposed is reasonable (See:
Third Division Awards 73179 and l).
Upon a caxetiul review of the complete record herein, however, this Board
is not persuaded that the Carrier has produced arty degree of substantial
evidence which would approach the "sufficiency of evidence requirement"
indicated above. Though it does appear that such evidence was known by the
Carrier and could have been produced, this evidence was not made a part of
the Carrier's presentation; and since this Board is limited in its deliberations
to the record which is presented to it, this Board has no alternative but to
affirm the claim as presented and to direct that the Claimant be made whole as
per his request and in accordance with the provisions of the parties' controlling
agreement.
A W A R D
Claimant shall be made whole in accordance with the above Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
stmarie Branch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of June, 1980.