Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8530
SECOND DIVISION Docket No.
8619
2-SOO-FO-'80
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Firemen
°c
Oilers
(
Parties to Dispute:
( Soo Line Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Laborer Mark O'Rourke,
Minneapolis, Minnesota, was unfairly dismissed from service
of
the
Soo
Line Railroad Company, effective December
13, 1978.
2. That, accordingly the
Soo
Line Railroad Company be ordered to make
Mr. Mark O'Rourke whole by restoring him to service with seniority
rights, vacation rights and all other benefits that are a condition
of employment, unimpaired, with compensation for all lost time plus
annual interest; with reimbursement of all losses sustained
account loss of coverage under Health and Welfare and Life Insurance
Agreements during the time held out of service; and the mark removed
from his record.
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, a laborer at the Carrier's Shoreham. Diesel facility in Minneapolis,
Minnesota, was discharged on December
13, 1978
for committing vandalism on November
18, 1978.
The organization contends that the claimant was denied a fair hearing because
the Manager of Shops engaged in multiple roles contrary to the applicable agreement by serving the notice of charge, assessing the discipline and denying the
initial appeal. Further, the organization asserts the claimant, when he was
throwing fluorescent light bulbs to a fellow employe, never intended to cause
the destruction of company propert-: but only engaged in harmless horseplay.
The carrier ur-es us to suot;:in t::u discipline because the record discloses
substantial evidence (including two eyewitnesses) to show the claimant deliberately
destroyed at least four fluorescent light
bulbs
and one high watt mobul base
bulb. Vandalism, according to the carrier, is an offense of such serious
magnitude that dismissal is the proper penalty.
Form I
Page 2
Award No.
8530
Docket No.
8619
2-SOO-FO-180
A perusal
of
the record demonstrates the claimant was accorded a fair and
impartial hearing. The manager of shops did not engage in multiple roles, since:
he only assessed the discipline at the direction of the Chief Mechanical Officer
who had reviewed the hearing transcript.
There is some conflict in the record regarding the placement of the light
bulbs before claimant started throwing them. It is not the function of this
Board to resolve credibility disputes but, suffice to say in this case, the
conflicting testimony is immaterial. Regardless of whether the bulbs were
securely in their fixtures or merely laying .around the shop, the claimant
knew that throwing fragile light bulbs was substantially certain to result in
damage to company property. Claimant's fellow employe conceded they were tossing
the bulbs around "like a football". Claimant acted in reckless disregard of
the preservation of carrier property. The claimant's reprehensible conduct
constituted more than mere horseplay and, thus, there is substantial evidence
in the record to support the charge of vandalism.
Upon a careful scrutiny of the entire record, tae conclude that a penalty
of
dismissal is excessive. Claimant's separation from service since December Y;,
1978
should impress upon the claimant the wrongfulness of his actions. We rule
the claimant should be reinstated with seniority unimpaired but without back
pay and the other benefits requested by the claimant. However, the claimant
should be acutely aware that this Board does not tolerate playing with company
equipment. Upon his return to work, the claimant should perform his duties in
an exemplary fashion. Future infractions will not be looked on with favor by
this Board.
A W A R D
Claim sustained but only to the extent consistent with our findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
R semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 3rd day of December,
1980.