Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8930
SECOND DIVISION Docket No.
8797
2-CR-MA-'82
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That Machinist F. E. Hicks was improperly suspended from service fox
ninety
(90) days.
2. That accordingly, Machinist F. E. Hicks' record be cleared and he be
compensated for each and every day he was suspended.
Findings:
The Second Division of the
Adjustment ~'. ---d
.a
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.
The claimant entered the service of the former Penn Central Transportation
Company on March
17, 1975.
At thc: time of the occurrence involved in this
dispute he was assigned as a machinist in the Air Brake Shop, J,miata Locomotive
Shops, Altoona, Pennsylvania. He was also a Committeeman of the local lodge of
the Machinists' Organization and served as Union Representative in the Air
Brake Shop.
On January 23,
1979,
claimant was issued a notice of trial in which he was
charged:
"1. Direct interference with production on Friday,
1-12-79.
2. Conduct unbecoming ftn employee and representative of the
labor union."
The trial was held on February
15, 1979,
as scheduled, with the claimant
present and represented. On April
3, 1979,
claimant was notifitA of his dismissal
frcm service. On April
6, 1979,
the Local Chairman appealed the discipline to
the Manager-Labor Relations. Following a hearing on the appeal, the manager of
Labor Relations agreed, on a leniency basis, to change the dismissal to ninety
days suspension, with the understanding that the time that claimant had been
held out of service
vn"ld
apply, without remuneration, toward the ninety days
;Orm ':L Award No. 8930
Page '2 Docket No.
8797
2-CR-MA-182
:suspension. The ninety days suspension was appealed in the usual manner on the
property, and, failing of settlement, was referred to this Board.
A copy of the rather lengthy transcript of the investigation or trial has
been made a part of the record. Based upon our review of the transcript of the
trial, we find that none of claimant's substantive procedural rights were violated.
Claimant was present throughout the trial and was represented. The trial was
conducted in a fair and impartial manner, although it seems that numerous
irrelevant items were injected.
There was substantial evidence adduced at the investigation that the
claimant attempted to interfere with production in the Air Brake Shop, and
attempted to instruct employes as to the amount of work they were to perform.
The Assistant General Foreman testified that at approximately 2:00 P.M.,
January 12,
1979,
his foreman, R. J. Osmolinski approached him about a "production
o;~ob lem"; that the union man (claimant) was protesting in an indignant and
belligerent manner about over demanding production of a machinist. In a meeting
i'tho hss~istant General Foreman's office, at which the claimant, the involved
machinist, and Foreman Osmolinski were present, the Assistant General Foreman
says that he attempted to ask the machinist what the trouble was and that claimant
was behaving in an erratic manner; that he informed the machinist that a time
:.tudy lied recently been made and the approximate time per valve was under six
minute:; therefore, he should have no trouble getting 80 per day, at which time
claimant told the machinist that 80 was too high and that he should only get
30. Assistant General Foreman then told both men to go back to work, that
management sets production quotas.
Without attempting to detail all the evidence in the trial, or investigatirna,
suffice it to say there was substantial evidence that claimant did attempt to
tell the employes how much work to produce and that his actions toward supervisory
personnel were reprehensible, to say the least.
The Carrier has the right to establish fair and reasonable standards,,
and this Board lacks the authority to direct the Carrier's operation in any manner.
The Carrier has also called attention that in contracts of employment there
is an implied condition of loyalty by an employe to his employer. The Carrier
cites the text of
56
Corpus Juris Secundum,page
1+30,
Master and Servant, reading:
"One who asserts an interest, or performs acts adverse or disloyal
to his employer commits a breach of an implied condition of the
contract of employment which may warrant discharge..."
The Board adheres to this principle. See Third Division Awards
2496,
10930,
15932, 11911, 19811,
23151
and Award 1 of Public Law Board No.
2787.
White there were conflicts in testimony at the trial, it is well settled
that this Board does not weigh evidence, attempt to resolve conflicts therein, or
pnrs upon the credibility of witnesses.
Form 1 Award No.
8930
Page
3
Docket No. 8797
2-CR-MA-'B2
Based upon the entire record, it is our belief that the Carrier was liberal
in reducing the original dismissal to a 90-day suspension. The Board will not
interfere with the 90-day suspension.
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By~d.~Lc~-
emarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this
24th day
of February,
1982.