Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
$$66
SECOND DIVISION Docket No. 8686-I
2-ICG.-I-'82
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered,
( Larry J. Cook, Petitioner
_farties to Dispute:
( Illinois Central Gulf Railroad Company
Dispute: Claim of Emnloyes:
Petitioner claims that he was unjustly and improperly suspended from
the Illinois Central Gulf Railroad Company for thirty (30) days beginning
at 7:00 A.M., December 13, 1978 and ending January 12, 1979 at 3:00 P.M.
in violation of Rule 39 of the Schedule A Agreement between the I.A.M.-A.W.
and the Illinois Central Gulf Railroad Company. Petitioner further claims
the facts as set forth by various witnesses failed to support the finding
that petitioner made.any false ststemetta at the
investigation
of one M. A.
Vollenweider concerning said Vollenweider's alleged failure to comply with
certain instructions given to him by his supervisor on or about October 11,
1978.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employs or employee involved in this dispute
are respectively carrier and employs 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.
On October 11, 1978, petitioner was operating a fork lift truck while assisting
M, A. Vollenweider in the installation of a new coupler on engine 8307. The
coupler became jammed and M. A, Vollenweider reached under the engine to insert
a pin so that the fork lift could be removed without repositioning the coupler.
The coupler moved slightly when the fork lift backed away from the engine. The
petitioner claims that M. A. Vollenweider injured his hand when it was jammed
between the coupler and the carry iron bar. Shortly thereafter M, A, Vollenweider
was unable to move a twelve (12) foot long pipe section when requested to do so
by his foreman, J. R. Hall, claiming injury to his hand. J. R, Hall took this
inability to perform the task to be insubordination and charges were brought
against M. A. Vollenweider on those grounds. Larry J. Cook, petitioner, testified
at that hearing and was then charged with giving "false statements" at the
investigation of M. A. Vollenweider's case.
Petitioner Cook contends that his hearing was conducted in violation of Rule:
39 of the Schedule A Agreement which provides in pertinent part:
Dorm 1 Award No.
$W
Page 2 Docket No. 8686-I
2-ICG-1-182
". ouch employee will be app. aieed of
hu._2rc:cise charge
against
him. 'I'he employee Will have reasonable opportunity
to secure the presence of necessary witnesses..." (emphasis
added)
The Organization claims that petitioner has been denied his rights under Rule
39 since "he is yet to be advised of the
precise charges against him". The
Organization notes that while he had been told that he allegedly made "false
statements", he was not informed which statement or.statements were the one or
ones in question.
The petitioner claims he was unjustly and improperly suspended. He further
claims the facts set forth by various witnesses fail to support the Carrier's claim
that he made any false statements at the investigation of Vollenweider.
The Carrier maintains the notice was precise and the petitioner knew what
the company was questioning him about when it recreated the incident. The Carrier
argues that it has the right to expect its employees to tell the truth be it at
a disciplinary hearing, an accident investigation or giving statements to claim
agents.
The Carrier asserts it did not believe the Petitioner's story and that it
proved he was lying. It further contends the discipline was warranted.
The notice of discipline read as follows:
"At the investigation in the Conference Room of the Division
Office Building, Harahan, Louisiana, at 8:30 AM, December 4,
1978, it was disclosed that you did make false statements at
the investigation which was held in the Conference Room of
the Division Office Buildiag, Harahan, La., at or about
8:30 AM, to determine whetier or not Mr. M, A, Vollenweider, Jr.,
refused to comply with instructions given to him by General
Foreman J. R, Hall on October 11, 1978, at or about 11:50 AM,
to remove a long pipe from in front of the middle ramp steps
in Mays Yard Roundhouse.
Because of your having made false statements in the investigation
you are assessed thirty (30) days suspension from the service of
the Illinois Central Gulf Railroad, beginning 7:00 AM, December
13, 1978, and ending January 12, 1979 at 3:00 PM.
You may return to your regular tour of duty on January 13,
1979.
Giving false testimony in an investigation is a moat serious
offense. Leniency is being shown you in this case because
of your past record."
Form 1
Page 3
Award No.
8866
Docket No. 8686-I
2-ICG-I-'82
The central element in the instant case is whether or not the Claimant,
who was on the fork lift, could actually see the injury alleged to be received
by Vollenweider who was working under the coupler. The Claimant's testimony at
the Vollenweider's hearing, that he saw the injury take place, was challenged
by the Carrier. The scene of the incident was recreated with all assembled. The .
re-enactment demonstrated that the location where the alleged injury took place
could not actually be observed from the position on the fork lift occupied at the
time by the Claimant.
In reference to the specificity of the charges, we would note that the
disputed testimony of the Claimant tit the earlier hearing was rather brief and
precise covering what he claimed he witnessed. Given such limited testimony,
the charge of giving "false testimor.y" is found to be sufficiently specific in
the instant case to meet the requirements of Rule 39 of Schedule A. The Claimant
received reasonable notice of the specific charge against him, sufficient to prepare
an adequate defense.
It
is
a well established principle that the Board will not set aside s
disciplinary action of the Carrier unless such action clearly appears to be
unjust, unreasonable, capricious or arbitrary (see Third Division Awards 10571
Referee LaBelle and 11324 Referee Dolnick). The evidence and re-enactment
reasonably indicates that the Claimant could not have observed that which he
testified he had observed, thus giving adequate support to the charge of giving
false testimony. This case is identical to that in Award No.
8864.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
semarie Brasch - Administrative Assistant
Dateiat Chicago, Illinois, this 13th day of January,
1982.