Form 1 NATIONAL RAIIROAD ADJUSTMENT
BOARD
Award No. 81+60
SECOND DIVISION
Docket No. 8387
2-KCS-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
Parties to Dispute:
(
( Kansas City Southern Railway Company
Dispute: Claim of Employes:
1. That the Kansas City Southern Railway Company violated the controlling
Agreement, particularly Rule 30, when they dismissed Machinist T. N.
Beach from service for allegedly being insubordinate by striking his
Foreman and using vile and abusive language towards his Foreman.
2. That, accordingly, the Kansas City Southern Railway Company be ordered
to compensate Machinist T. N. Beach at the pro rata rate of pay for
each work day beginning August
9, 1978,
until he is reinstated to
service. In addition, he shall receive all benefits accruing to any
other employee in active service including vacation rights and seniority
unimpaired.
3.
Claim is also made for Machinist T. N. Beach's actual loss of payment,
of insurance on his dependents, and hospital benefits for himself,
and that he be made whole for pension benefits, including Railroad
Retirement and Unemployment Insurance.
In addition to the money claimed herein, the Carrier shall pay Machinist
T. N. Beach an additional sum of
6%
per annum, compounded annually on. the
anniversary date of said claim, in addition to any other wages earned.
elsewhere in order that he be made whole.
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 for being insubordinate on August
9, 1978,
in that:
he allegedly struck his Foreman, used vile and abusive language toward said
Foreman, and refused to comply with instructions which were issued by same.
Form 1 Award No.
8460
Page 2 Docket No.
8387
2-KCS-MA-'80
Claimant's Organization argues that Claimant did not receive a fair hearing,
as directed in Rule
30
of the parties' applicable agreement, in that: (1) Claimant
was "indicted" rather than "charged", and his guilt, therefore, was "prejudged"
prior to the hearing; (2) the charges leveled against Claimant were vague and
lacked precision;
(3)
conduct of the hearing officer was improper in that said
officer refused to permit evidence pertinent to Claimant's defense into the
record; and,
(4)
transcription process was improper since the record of the
investigatory hearing was transcribed by a company employee and was written in
shorthand thus prohibiting Organization from personally recounting what had been
stated by Company witnesses.
In addition to the procedural arguments which are posited above, Organization
further contends that Claimant's discharge was unwarranted for reasons that:
(1) Claimant's use of profanity toward his Foreman in this instance
was not an act of insubordination since no direct order was given
and, also, the language used was "shop talk" which is the normal,
everyday habit of both this particular Foreman and his subordinates;
(2) removal of Claimant from service prior to the investigation was a
violation of Rule 30 since Claimant was neither violent nor was he
a threat to his fellow workers or Carrier's property; and,
(3) Claimant acted in self-defense as the Foreman was the instigator
of the altercation and wanted to continue the altercation outside
without witnesses present.
Carrier argues that Claimant's actions of August
9, 1980,
were specifically
violative of Carrier Rule "N" which reads:
"Employees must not enter into altercations, play practical
jokes,
scuffle or wrestle on Company property.
Employes must not be:
(1) Careless of the safety of themselves and others.
(2) Negligent.
(3) Insubordinate.
Dishonest.
(5)
oral.
(6)
Quarrelsome, or otherwise vicious."
Claimant's actions, according to Carrier, were detrimental to good employeeemployer relations and were of such a grievous nature that the penalty of discharE
which has been assessed cannot be considered as being unwarranted or excessive.
Form 1 Award No.
8460
Page
3
Docket No. 8387
2-KCS-MA-'80
Carrier further argues that Organization's contentions regarding the "shop
talk" nature of Claimant's vulgarities which were directed toward his Foreman is
an improper defense, since said vulgarities were not used in their "everyday
accepted sense", but they were "...in fact a direct slander against the authority
and character of..." the Foreman. Additionally, Carrier maintains that Organization's
effort to characterize the Foreman as the aggressor in this incident is totally
unsupported by the testimony of several creditable witnesses.
Lastly, regarding Organization's charge that the investigatory hearing was
unfair, Carrier contends that said hearing was in fact fair and impartial in that
Claimant was afforded the same contractual opportunities which are extended to
any other employee.
This Board has carefully read and studied the entire record in this instant
dispute and fails to find sufficient support for Organization's procedural objections regarding the conduct of the hearing or the precise statement of the
charges which, otherwise, might warrant a dismissal of the charge which has been
brought against Claimant.
As to the merits of this case, the record sufficiently establishes that
Claimant directed vulgar language toward his Foreman, and that an altercation
took place between Claimant and said Foreman.
Carrier contends that Claimant's language was vile and abusive, and, moreover,
was not used in the everyday accepted sense as argued by Claimant's Organization.
Though this Board cannot condone the usage of language such as that which is at
issue herein, the Board is convinced that said language does comport with that
which is generally described as "shop talk" since, inter alia: (1) the utterances
were spontaneous outbursts; (2) Claimant's exact words were in no way a literal
attack upon Foreman's familial relationship; and, (3) Claimant's statement was
not made with the express purpose of demeaning the Foreman or diminishing the
Foreman's authority in the eyes of the other employees.
Now to the matter of the altercation itself, and, once again, though this
Board cannot condone or tolerate acts of physical violence of any type, particularly
between employees and their supervisors, the record in this instant case suggests
that the Foreman did provoke the incident to some extent, and he, therefore,
must be made to bear a part of the responsibility for the development of this
incident.
Claimant is an employee with approximately eight years of service with
Carrier; and, with the exception of the incident at hand, Claimant's work record
is, apparently, without any other serious infraction. Given these considerations,
but, moreover, given the fact that the Foreman's actions to some degree provoked
the incident itself, this Board believes that Claimant's discharge was excessive,
and, therefore, improper.
This Board is well aware of the limitations of its appellate authority
and has taken judicial notice of the many awards which Carrier has cited relative
to this point. Insofar as this Board is of the opinion that Carrier's actions
were excessive in this instant case, however, this determination is within the
Form 1
Page 4
Award No.
81460
Docket No.
8387
2-KCS-MA
bounds as prescribed in Carrier's citations. (See: First Division Award No.
14 863;
Second Division Awards No.
5681
and
7399;
Third Division Awards No.
21021 and 21442) .
Let there be no mistake, the above conclusions regarding the excessiveness of
the penalty in no way vindicates Claimant or justifies his actions. Claimant was
the major perpetrator in this incident and his punishment will be commensurate
with the seriousness of his proven offense. However, for the reasons posited
above, Claimant deserves to be reinstated and given one last chance to demonstrate
that he is a responsible employee who is deserving of continued employment by
Carrier.
A W A R D
On the basis of the foregoing analysis and findings, this Board directs
that Carrier reinstate Claimant. Seniority and all other contractually defined
benefits which normally are applicable in situations such as this shall remain
unimpaired; back pay, however, is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
o emarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this
8th
day of October,
1980.