Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8437
SECOND DIVISION Docket No. 8333
2-A&S-FO-'80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
System Federation No. 2, Railway Employes'
Department, A. F. of L. C. I. 0.
Parties to Dispute: ( (Firemen & Oilers
Alton and Southern Railway Company
Dispute: Claim of Employes:
1. That Laborer, Mrs. Gretta Williams, was unjustly dismissed from the
service of the Alton & Southern Railway Company on December 1, 1978,
on charges of alleged violation of Uniform Code of Safety Rules, General
Rule N(3) Insubordinate.
2. That accordingly, the Alton & Southern Railway Company compensate
Laborer, Mrs. Gretta Williams, at the pro rata rate of pay for each
work day beginning December 1, 1978, until she is reinstated to
service and in addition to receive all benefits accruing to any other
employee in active service, including vacation rights and seniority
unimpaired. Claim is also made for Laborer, Mrs. Gretta Williams,
for her actual loss of payment of insurance on her dependents and hospital
benefits for herself, and that she ba made whole for pension benefits
including Railroad Retirement and Unemployment Insurance, and in addition
to the money claimed herein, the Carrier shall pay Mrs. Williams an
additional sum of
6%
per annum compounded annually on the anniversary
date of said claim.
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 removed from service on October 28, 1978 pending the outcome of
an investigation scheduled on November 2, 1978 to determine whether she refused
to comply with supervisory instructions on October 27, 1978. Following this
proceeding, she was notified by letter, dated December 1, 1978 that she was dismissed
from service for refusing to obey Hostler Virgil Allen's directives and this
disposition was appealed pursuant to Agreement Rule.
Dorm 1 Award No.
8437
Page 2 Docket No.
8333
2-A&S-FO-'8o
In defense of her position, Claimant contends that she was not provided a
fair and impartial investigation. She argies that the hearing officer permitted
the entry of hearsay testimony into the record, allowed Carrier to examine an
excessive number of hostile witnesses and overruled pertinent objections raised by
the Organization. She asserts that she did pour cooling water into Unit
1505
and
thus observed her supervisor's directives.
Carrier, contrawise, contests these contentions and argues that she was
provided an investigation that comported with the standards of administrative due
process. It avers that she was not barred from introducing testimony and evidence
relative to her position or from cross examining Carrier witnesses. It contends
that she was provided ample opportunity to present a coherent and intelligent
defense and was unable to refute the charged specifications. It asserts that the
investigative record demonstrates that she failed to follow supervisory instructions
in direct violation of General Rule
N(3)
of the Uniform Code of Safety Rules.
In reviewing this case, we concur with Carrier that Claimant was provided a
fair and impartial investigation. There are no limitations or administrative trial
standards setting forth the number of witnesses an advocate party can directly
examine or prohibitions on hearsay testimony. It is up to the tribunal authority
to determine the value and relevancy of hearsay statements. The Claimant was
given an unrestricted opportunity to present forcefully her version of the
incident and to impugn adverse testimony.
The record shows that she failed to follow her supervisor's instruction to
pour cooling water into unit
1505
and then refused to execute this task, when she
was directed by Machinist Gary M. Stephens and Car Foreman G. M. Rehg. She later
poured the cooling water into this Unit, as directed, but at a time when it was too
late and well beyond the bounds of permissible conduct.
While we are constrained by the record to sustain Carrier's penalty, we think
that her dismissal to date was sufficient punishment for this offense. We recognize,
of course, that her prior disciplinary record raises a serious question as to
whether she should be given one last chance and thus we are reluctant to modify
Carrier's determination. But we believe, after carefully evaluating the record, that
her dismissal since December 1,
1978
served its intended disciplinary purpose.
Accordingly, we will restore Claimant to service, without back pay with the
conditional proviso that we will sustain without hesitation, a dismissal penalty,
if she again manifests such deplorable behavior. This is her one last chance
to prove that she can be an exemplary employee.
A W A R D
Claim sustained to the extent expressed herein.
Form 1 Award No.
843'(
Page
3
Docket No.
8333
2-A&S-FO-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By LL~t
v
os~fnarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 21st day of August,
1980.