Form I NATIONAL RAILROAD ADJUST11ENT BOARD Award No. 8552
SECOND DIVISION Docket No.
7999
2-L&N-CM-'81
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1. That Upgraded Carman Apprentice F. T. Baxter, Jr. was improperly withheld
from service from July 18,
1977,
until September
16, 1977,
when he was
dismissed from service in violation of the Current Agreement, and
2. Accordingly, the Louisville and Nashville Railroad should be ordered to
(a) Restore him to service with seniority and all employee rights
unimpaired.
(b) Compensate him for all time lost as a result of his dismissal with
interest at the rate of
6%
per annum on all money due him, and
(c) Pay premiums for his hospital, surgical, medical, group life
insurance and supplemental sickness benefits for the entire
time he is withheld from service.
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 employed as an upgraded Carman Apprentice with a seniority date
of March 21,
1974
at the time of dismissal.
On July 26,
1977,
claimant was charged with the unauthorized possession of
and removal of two RCA color television sets from the carrier's property at the
Radnor Yard at Nashville, Tennessee. The investigation was scheduled for August
1+, 1977.
After several postponments, the hearing was held on September 1,
1977.
As a result of the hearing, the claimant was dismissed via letter on September '16.
Form l Award No.
8552
Page 2 Docket No.
7999
2-I,&N-CM-'81
The transcript indicates that at approximately
3:00
a.m. on July
18
one of
the carrier's Special Agents, W. Z. Toney, discovered two RCA color television
sets still in their cartons concealed in the brush alongside the side of a dead
end service road which parallels the carrier's yard. The special agent then
ositioned himself in a place where he could observe the road. At approximately
:45
a.m. an automobile entered the road and at
x+:55
a.m. the same automobile
began to exit from the road when Special Agent Toney stopped the automobile.
The driver of the car was the claimant. Mr. Toney observed two color television
sets in the back seat of claimant's car. A third television set, which was black
and white, was in the front floor of the car covered with a towel. It was also
established that a piggy back trailer carrying various sizes and models of television
sets had been broken into that morning. The car and trailer were moving on Waybill
number
490790
and was part of train no.
385
which arrived in the carrier's
yard approximately
2:15
a.m. The claimant was assigned to work this train after
its arrival and worked on it until x+:00 a.m.
The transcript also reveals that the serial numbers on the two color
televisions found in the claimant's car matched the serial numbers of TV's found
to be missing by the consignee of the car in question upon its arrival at its
final destination.
The Board also notes that the claimant was excused from duty approximately
x+:30 a.m. the morning of the incident in order to go home and attend his daughter
who was sick. A woman had called claimant's foreman approximately x+:20 a.m. and
asked him to get a message to the claimant. She asked that the claimant call
home. The message was given to the claimant and he asked to be excused minutes
later.
The claimant's defense essentially was that he was retrieving the TV's to
return to his foreman. Special Agent Toney testified that after he stopped the
claimant he asked him what he was doing with the TV's. According to Toney, the
claimant said that he picked them up as a matter of curiosity and that his
primary intention was to turn them over to the foreman. Mr. Baxter testified
during the hearing, that while working train
,h,~-385
he saw "someone approximately
35
feet from where I was with something large in there (sic) hands. They walked
across a path into the brushes. (sic) I started back north to complete the train.
When I reached the point where I saw someone I stood and shined my light toward
the brush but did not see anyone so I went on and completed the train." He
further testified "At that time I reported off and started to go over to the
service drive to see if I could see anyone and to find out if someone was doing
something. As I went up the service drive is where I saw the two boxes and I t_zen
got out and looked to see if I saw anyone. From there I got the two TVs to carry
to the foreman."
The crucial issue in determining the claimant's innocence or guilt is the
extent to which his story can be determined to be credible. It is well established
in the railroad industry that it is not the Board's function to assess the
credibility of witnesses, weigh the evidence or to resolve conflicts in testimaay.
This is the function of the hearing officer. The function of the Board, as an
appellate body, is to review the evidence as a whole and to make a determination
if there is substantial evidence to support the hearing officer's decision.
Form 1
Page
3
Award No.
8552
Docket No.
7999
2 -I&N-CM-'
81
The Board has reviewed the entire record and concludes there is substantial
evidence to support the carrier hearing officer's conclusion that claimant was
guilty of theft. It is not credible to believe that the claimant really intended
to return the TV's to his foreman. It is hard to believe that an employee called
home to attend a sick child would be so concerned as to take the time to investigate
a supposedly suspicious incident, particularly when he failed to do anymore than
shine his light in that direction earlier. If Mr. Baxter was genuinely concerned
about some potential impropriety against the carrier by this "someone" that was
carrying something large and who disappeared into the bushes, he had several
opportunities while on duty to do something about it. Mr. Baxter admitted he
did not utilize a nearby telephone or his walkie talkie to notify his foreman
that something was wrong:
The claimant's credibility was also seriously hurt by his answer to the
following question:
`Q. Mr. Baxter, after you got word that your child was
sick and was relieved for this purpose, why did you go
out of your way to observe if something was going on as
you previously stated?
A. Well, I was not for sure if there was something going on and
I go home that way."
This explanation is completely frivilous in light of the fact that the service
road which the claimant drove down to see if something eras "going on" is a dead
end. In light of this fact it would be hard for the claimant to "go home that
way". The Board is convinced there is substantial evidence to uphold carrier's
conclusion that the TV's were placed in the bushes by the claimant with the intent
of picking them up later and removing them from the carrier's property and placing
them under his control.
Regarding the question as to whether the punishment fits the crime, we
cannot conclude that dismissal is arbitrary or capricious for an offense of this
serious magnitude and as such by force of the precedent of this Board are bound
to uphold the discharge.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY_
,~'C
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 7th day of January, 131.