Form 1 NATION L RAIIROAD ADJUSTMENT BOARD Award No. 8457
SECOND DIVISION Docket No.
8450
2-WT-FO-'80
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Brotherhood of Firemen & Oilers
(
Parties to Dispute:
~ Washington Terminal Company
Dispute: Claim of Employes:
1. That in violation of the current agreement, W. Felder, Laborer was
unjustly suspended and dismissed from service of the Carrier following
hearing held on date of February 16, 1979.
2. That accordingly the Carrier be ordered to make the aforementioned W.
Fleder, Jr., whole by restoring him to Carrier's service with seniority
rights unimpaired, plus restoration of all holiday, vacation, health
and welfare benefits, pass privileges and all other rights, benefits
and/or privileges that he is entitled to under rules, agreements, custom
or law, and compensated for all lost wages plus interest.
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 subject to an investigative hearing on the following charge:
"Violation of Washington Terminal Company General Rules 'N',
'Employes ... must conduct themselves at all times, whether on
or off Company property, in such a manner as not to bring
discredit upon the Company. Participating in any unauthorized
or unnecessary activity while on duty or while on Company
property is prohibited.' When at approximately 8:15 a.m. on
February
9,
1979 you did threaten your supervisor, Enginehouse Foreman M. R. F:2rr, Jr., when you threatened him with
bodily harm after being disciplined as a result of a Hearing
afforded you on February 5, 1979, when you stated to Mr.
Farr, 'I will put something between your lights' and at
this same time you pointed your finger to Mr. Farr's head."
Form 1 Award No.
8457
Page 2 Docket No.
8450
2-WT-FO-
'80
General Rule "N", of which a portion is quoted above, reads in full as
follows
"Employes must be of good moral character and must conduct
themselves at all time, whether on or off Company property,
in such manner as not to bring discredit upon the Company.
Stealing, falsifying reports, being insubordinate, engaging
in altercations, gambling, playing games, participating in
any illegal, dishonest, or immoral activity, while on duty or
while on Company property, is prohibited.
Participating in any unauthorized or unnecessary activity,
while on duty or while on Company property, is prohibited.
Employes are prohibited from entering cars except in the
in the performance of their duty. Loitering in cars is
prohibited."
The Organization argues that the charge against the Claimant was not
sufficiently precise to meet the requirements of Rule
32,
pointing to the
indefinite nature of the excerpt from Rule "N". The charge, however, goes on to
provide specific details concerning the incident in which the Claimant is alleged
to be involved. The Board finds that the charge meets the requirements of Rule
32
and that the hearing was conducted in a fair and proper manner.
The supervisor involved, served as Acting General Foreman for the day,
testified that the Claimant came into his closed office and used the words
indicated in the charge. The claimant, on the other hand, testified that he came
into the office to empty the trash basket and said nothing whatsoever to the
supervisor. Some doubt is case on this version initially in that the Local
Chairman indicated, in questioning the supervisor during the investigative
hearing, that the Claimant had indicated to him that he had gone into the office
to discuss a previous disciplinary matter with the supervisor.
The Board can find no basis to question the testimony of the supervisor.
No motivation was shown for him to make up the incident out of whole cloth.
The statement attributed to the Claimant can only be understood as a threat of
bodily harm. The Claimant's testimony that his purpose in entering the office
was to empty the trash basket is not supported by evidence that he was actually
prepared to do the task.
In assessing the penalty, the Carrier properly reviewed the Claimant's past
record, which shows progressively more severe disciplinary suspensions for offenses
involving personal misconduct. Based on the testimony in the hearing and the
Claimant's past record, the Board finds that the penalty of dismissal was
reasonable.
Form 1
Page
3
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 8457
Docket No.
8450
2 WT-FO-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
os are Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 1st day of October,
1980.