Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8664
SECOND DIVISION Docket No.
8592
2-B&M-CM-' 81
The Second Division consisted of the regular members and in
addition Referee
John B
. LaROCCO when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
(
( Boston and Maine Corporation, Debtor
Dispute: Claim of Employes:
1. That under the terms of the current Agreement, upgraded Carman-Helper
C. A. George, Jr. (hereinafter referred to as the Claimant) was
unjustly held out of service of the Boston and Maine Corp. (hereinafter
referred to as the Carrier) from May
26, 1978
through June
21, 1978,
both dates inclusive.
2. That accordingly, the Carrier be ordered to compensate the Claimant for
all lost wages and fringe benefits, if any, during time held out of
service by the Carrier.
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 carman helper stationed at Lowell, Mass., was charged with the
unauthorized removal of wood lining from a freight car and with unauthorized
action on May 20,
1978.
Five days later, the carrier held. the claimant out of
service pending a hearing originally scheduled for Julie
6, 1978.
The notice of
hearing is dated June 1,
1978.
At the request of the organisation, the parties
agreed to postpone the hearing and it was duly held on June 20,
1978.
The carrier
found the claimant committed both offenses and assessed discipline consisting of
twenty-four demerits and the prior suspension from service from May
25, 1978
until the hearing. On June
20, 1978,
claimant was restored to service.
On May 20,
1978,
the claimant, accompanied by a friend, removed two pieces
of lumber from a freight car and placed them in a truck. A carrier police officer
observed the lumber in the truck and instructed the claimant to replace the wood.
The claimant complied. There was a substantial dispute regarding whether the
claimant had properly procured permission to remove the lumber. Claimant removed
the lumber during his regular shift, but he was not neglecting any particular
work assignment and on May 20,
1978,
the claimant competently performed all his
Form 1 Award No.
8664
Page 2 Docket No. 8592
2-BEM-CM-'81
duties. The carrier urges this Board to sustain the discipline contending the
record contains substantial evidence to support both charges. The organization,
on the other hand, argues that the evidence offered by the carrier was speculative
and insufficient for a finding of a violation. Alternatively, the organization
claims the discipline constituted an abuse of management discretion when compared
with claimant's outstanding work record.
Where the record raises credibility issues, we are unable to resolve conflicts
in testimony where the carrier has reached a reasonable factual conclusion from
the record. The record demonstrates that the claimant did not have proper
written permission to remove the wood from the freight car and, by his admission_
he did place two pieces of wood in his friend's truck. Thus, we affirm the carrier's
finding that the claimant committed the first charged infraction. After carefully
reviewing the record, we can uncover no evidence supporting the second charge. The
claimant's immediate foreman repeatedly praised the claimant's general work
performance. In addition, the foreman testified that the claimant ably completed
all his assigned duties on May 20,
1978.
There are, however, several mitigating circumstances which justify a reduction
in the penalty. First, claimant sincerely thought (though incorrectly) that he had
permission to take scrap lumber off the property. Second, the carrier improperly
applied Rule 31(a) since this was not the type of case which mandated a suspension
prior to the investigation. The claimant was not threatening either the safety
of other employes or the efficient operation of the railroad. The infraction was
relatively insignificant and the carrier waited five days before imposing the
prehearing suspension. Third, when directed to return the material, claimant
immediately did so and thus he received no personal benefit as a result of his
conduct. Lastly, the carrier failed to prove the second charge. Due to the
extraordinary circumstances surrounding this case, the discipline imposed was
excessive. Twenty-four demerits alone is a penalty that is reasonably commensurate
with the proven offense.
Ordinarily, the claimant would be entitled to wages lost for the period from
May 25,
1978
to June 20,
1978.
But, in this case, the organization asked for a
hearing postponement and the carrier should not be prejudiced for acceding to the:
organization's request. Even though the organization rightly requested a
hearing delay so the claimant could prepare a defense, the carrier is not responsible
for the wages lost from June
7, 1978
to June 20, 1978.
The claimant shall be paid wages lost for the period from May 25, 1978 through
June
6, 1978
at the rate of pay in effect at that time under the applicable
agreement. The discipline of twenty-four demerits is affirmed. In accord with Rule
31(a), the claimant's petition for over time pay is denied.
A W A R D
Claim is sustained to the extent consistent with our findings.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 8664
Docket No. 8592
2-B&M-CM-'81
NATIONAL RAIUOAD ADtTUSTMENT BOARD
By Order of Second Division
By
h.Al
·~i.~
os marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of March, 1981.