Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
87')r6
SECOND DIVISIQJ Docket No.
Wt8
2-BRCOfC-CM-'81
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
Belt Railway Company of Chicago
Dispute: Claim of Employes:
1. That as a result of an investigation Friday, February 23,
1979
Carman
Patrick Tantillo was dismissed from the service of the Belt Railway Company
of Chicago effective February 26,
1979.
Said dismissal of Carman Tantillo
is arbitrary, vagarious, unfair, unjust, unreasonable and in violation of
Rule 20 of the current working Agreement.
2. That the Belt Railway Company of Chicago be ordered to reinstate Carman
Patrick Tantillo to their services with seniority, vacation and all other
rights unimpaired and to compensate him for all time lost commencing
February 20,
1979
and continuing until such reinstatement is in effect.
3. That the Belt Railway Company of Chicago be ordered to pay Carman Patrick
Tantillo for all losses, if any, suffered account of loss of coverage
under the agreements pertaining to Dental, Hospital, Surgical and Medical
Insurance Plans for all time held out of service.
4. That the Belt Railway Company of Chicago be ordered to pay the premium
on the Group Life Insurance Plan for Carman Patrick Tantillo for all time
that he is held out of service. In addition to the money amounts claimed
herein, the Belt Railway Company of Chicago shall pay Carman Patrick
Tantillo an additional amount of
6°%
per annum compounded annually on the
anniversary date of claim.
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 aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant held a regular assignment as Car Inspector in Carrier's Clearing Yard,
Chicago, Illinois, with hours
3:00
P.M. to 11:00 P.M.
The Carrier contends that a Lieutenant of Police was watching employe activities
in and around a Car Department Building, which is
known
as No. 208 Shanty, from a
Form 1 Award No.
8756
Page 2 Docket No.
8448
2-BRCofC-CM-'81
distance of about 150 feet; that about 10:30 P.M. the Lieutenant observed claimant
remove two plain brown cartons, approximately P0 inches long and 12 inches wide,
from an ice box located in the back of the shanty and place the cartons in the trunk
of a tan Ford Granada with no license plates. The Lieutenant continued surveillance
of the area until
10:45
P.M., when the Car Foreman arrived at the No. 208 shanty..
The Lieutenant requested the supervisor to find out who owned the tan Ford.
The claimant acknowledged that the tan Ford was his vehicle, but when the Car Foreman
instructed him to open the trunk of the car, he refused to do so. The Lieutenant
also instructed the claimant to open the trunk and again he refused to do so, stating
that the cartons he placed in the trunk contained his boots.
On February
18, 1979,
claimant was suspended from service. On February 20,
1979,
claimant was ordered to report for formal investigation on February 23,
1979:
"This will notify you that you are being withheld from service
pending an investigation to be held at 10:00 a.m., on Friday,
February 23,
1979,
in the office of the Superintendent, Car
Department, to determine the facts and your responsibility,
if any, surrounding the incident that occurred at approximately
10:30 P.m. on February
17, 1979,
in and around the Car Inspectors
Building immediately east of Cicero Avenue in the East Yard,
wherein you were observed to conceal property in the trunk of
your automobile, and when confronted concerning the matter
you insubordinately refused to follow the instructions of
duly authorized authorities in the investigation of this
incident."
The charge met the requirement of the Agreement. It is well settled that
disciplinary proceedings are not criminal proceedings and that strict rules of
evidence do not apply.
In the investigation a patrolman testified that at about 11:30 P.M. on the
night involved, a car was found in the receiving yard with trailer door open; that
the load contained electric parts in cartons 12 by 20 inches, and that approximately
five cartons were missing from the top of the load, and two of the cartons were
recovered on the bed ofthe trailer underneath the wheels.
The Lieutenant of Police, who it was reported saw the claimant place two
cartons in the trunk of his car, testified at length in the investigation to the
effect that claimant refused to open the trunk of his car without a search warrant.
Car Foreman Smith testified that he instructed the claimant to open his
trunk, with the same result, claimant refused to do so without a search warrant.
He also testified that he instructed the claimant to remain at the shanty after
11:00 p.m., the regular quitting time for the shift, but claimant did not do so and
departed when the other employes did.
In the investigation, the claimant admitted that he refused to open the trunk
of his car. The record does not show that a search warrant was ever obtained to
search the trunk of claimant's car.
Form 1
Page
3
Award No.
8756
Docket No. 8448
2-BRCofC-CM-'81
While the suspicion surrounding Claimant's unusual activity could have been
easily resolved by the Claimant, complying with the request of his foreman, there
was no requirement, under these facts, for the Claimant doing so. The Carrier had
other means available to it to resolve this matter but did not make use of them.
It appears from the Carrier's submission that claimant was disciplined for
insubordination for not complying with the instructions of the Car Foreman to remain
at the shanty beyond 11:00 P.M. The Board finds that discipline for this offense
was justified; however, under the circumstances, permanent dismissal was excessive.
We will award that claimant be restored to service with seniority and other rights
unimpaired, but without any compensation for time lost while out of the service.
Items
3
and 4 of the asserted claim are denied as being without contractual support.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
semarie Brasch - Administrative Assistants
Dated at Chicago, Illinois, this 2nd day of September,
1981.