I,' orm 1. NATTONAL RATLROAD ADJUSTMENT 1MRD Award No. $943




Brotherhood Railway Carmen of the United States
 Parties to Dispute: ~ and Canada

Dispute : Claim of Employes






















F indi~igs :_

 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 ','_1, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The incident from which this case arises relates to Claimant driving a pick-up truck in tt~e early morning of July 23, 1979. A Foreman instructed Claimant to meet another employee and Claimant, on his way to do so, drove a GMC pick-up truck on the South side of track 21. It was alleged that it was not customary to drive such a truck on the South side of track 21. In any event, this truck
 Form 1 Award No. 8943
 Page P Docket No. 8838
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 became lodged between a pole and cars. The space between such pole and cars was 6'0" while, allegedly, the truck measured G'7" from left fender to right fender and f:' from left side view mirror to right side view mirror. Claimant asserted that thu truck became lodged when it swerved out of control as a result: of a tire blow out. Because it became so lodged as well as subsequent efforts to extricate the truck the latter allegedly incurred considerable damage. After this truck became wedged Claimant obtained a pick-up truck, allegedly without permission, from the Locomotive Department which he intended to use in seeking to dislodge the GMC pick-up truck. In driving this Locomotive Department truck to the site where the GMC truck was wedged Claimant allegedly damaged the former by, e.g., throwing the lid of a tool box and knocking off a side view mirror. The foreman who had originally instructed Claimant to take the GMC truck then met Claimant at the site where the GMC truck had been lodged and together they employed the Locomotive Department truck to pull the GMC truck from between the pole and cars. It is acknowledged that this dislodging process caused further damage to the GMC truck.

 Claimant was notified, by letter dated July 2_, 1979 that he was suspended from service, effective X3:00 A.M., July 23, 1979, pending investigation. Also, by letter of July 23rd Claimant was advised to report for an investigation on July 31, 1979.







Pursuant to the investigation, Claimant was notified by letter dated August 30, 1979 that he was dismissed from the service of the Carrier.

 This case comes before the Board in a curious posture, because after it was completely dealt with on the property, through the various appeal levels, the Claimant wrote a letter, dated May 21, 1980, to the Chief Mechanical Officer which stated, in part: "... I lied about the whole accident ... I lied because I was afraid and I thought T would get away with it ...." Thus, by Claimant's own admissions, he is made out as basically guilty of the offenses charged in the matter. However, the organization contends that this letter represents new matter and, since it is not evidence presented at the actual investigative hearing, should not be taken into account in determining this Claim. Putting aside what might be thought of as the fantastical quality of snaking an objective determination of the guilt or innocence of someone who has already admitted his guilt it can
 E , , era
 Award No. 8 43
 'S;ca Docket No. 8 38
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 iw mc,it: Loa( d that a review c-C the record of the Lnvestigative hearing does ,:Ilhport a I indin;; that the c urges against Claimant were proved I)y substantial (°videice. Vur c -.ample, whit. ! C l ai.msnt sotiglit to account for a damaged s Ldc· view «iirror, c»> Hie b,comotive bepartme»t pick-tip trti(~!k, and a missing tool box lid on tint:; truck., b-, indicating that -;tich damage, a:; well .as other damage was occasioned to tlii-; truck when it was iiti,11,zed to extricate the (;MC pick-tip trick frcnn where it lead lodgod, tile Foreman involved in this matter testified that- the tool I>o:c lid was, already missing from the tri.icic at tire time the foreman arr-Lved at the a-cident and was found ten or fifteen car longth® up the track from the truck. lie a Lso testifie 1 one side view, mirror of the Locomotive Department truck was already lying on tie front seat vrllen lie got in to this truck for the purpose of using it to try to extricate the wedged GMIC truck. Similarly the Foreman testified that because of the conditions on the South side of track 21, including considerable quantities of pipe lying about the GMC pick-up could not be driven at a sufficient speed to lodge between pole and cars because of swerving after a tire blow out, as Claimant alleged it did. The Foreman also questioned Claimant's testimony regarding whether it was customary to drive trucks such as the CM pick-up on the South side of track 21 and which tire on the GMC pick-up was blown out and why. Thus, as indicated, putting aside his subsequent admission against interest, the record contained substantial evidence from which it might be found that the charges made against Claimant were proved.

 The Organization has also alleged certain procedural improprieties in this matter. 1-t ar;serts that the charge against Claimant was not precise, in violation o3~ the recliiirement of Rule 35 (a), that the Claimant "and his duly authorized rcprc:;ci;i:atl.ve will be apprised in writing of the precise charge," because it cites; Ioilc:> which were not ap )licable to claimant. The Organization also c<~i;i:.;~:~yl.;: that there was a prot.-edural flaw in the hearing in that only one ()rganizatlon repr<,!>!,nt:at Lvc· was pre-lent to represent Claimant in contravention of Rule 31t-(h) wfif:li read:;: "Conference:; between local officers and local committee to be held It irin~; refpilar working hours ... to (sic) not more than three committeemen..."
:onsideration, at this point, since they were not urged at the investigative !searing itself. In support of,thisposition it cites cases such as Award No. 4639, Second Division, ("The contention of the Employees that the notice of hearing did not contain a specific charge was not raised at the hearing nor in the handling of this claim on the property, so it cannot be considered here,") and Award No. 1402, Secord Division, (1100. an accused employee having authorized representatives of his own choice: present will not ordinarily be permitted to participate in a disciplinary hearing without objection as to the manner in which it is conducted and after an unfavorable result, complain of its fairness.") However, in this case it is unnecessary to determine whether procedural objections not raised at the hearing are shut off from later consideration since, as will be indicated below, such procedural objections would not, in any event, carry.

 Regarding the alleged failure of the charge to be precise the Organization. contends that the Rules "B" and "C" cited in the charge were not applicable to Claimant at the time of the incident. It assert:: that Claimant was subject to Rules, Regulations, Safety Rules and Instruction:; Governing Mechanical Department Employees, effective July 1, 1979. It cites Rules "B" and "C" of the latter to
 Award No. 13943 Pall pocket No. 8838

demoij:;trab· that they do not contain the language of the Rule: "B" and "C" cited in the charge. It may be that the form of Hie rules applicable to Claimant were clanged shortly before the incident of July 23, 1)79 occurred. Not enough evidence is presented to this Board to resolve the issue of whose version of Rules "B" and "C", Organization's or Carrier's, was applicable to Claimant at the precise time of the incident in question. We are, however, confident that even if such a ciange in tire form of the rules did transpire, shortly before the incident here in question occurred, so that Rules "B" and "C" of the new form of the rules did note literally contain the language mentioned in the charge as belonging to Rules "B" and "C". The form of new rules does contain, elsewhere, in substance, proscription against the negligent and non-alert conduct with which Claimant was charged. In other words, quite aside from the labels Rules "B" and "C" Claimant, from the charge understood, clearly, fie was being charged with being "negligent" and failing to be "alert", "in connection with damage to the Car Department pick-up truck and the Locomotive Department pick-up truck on the morning o; July 23, 1979..." Hence Claimant was fully apprised of what would 1>e·. at issi a in the investigative hearing. This is sufficient to fulfill the purpose of the Rule requiring precision of charge, viz; that Claimant will be apprised of sufficient information so that ie may adequately prepare his defense against the allegations of wrongdoing. To --his effect see, for example, Award No. 0> 340>, Second Division, which stated

        "The Organization ha, contended that tht~ Claimant was not notified of specific rule violations prior to his hearing on the property. A review of the Carrier's notice of hearing shows the circumstances of the dispute were adequately described. The Carrier's allegations in the notice alerted the Claimant to the nature of the case so lie could properly prepare his defense. The claimant was quite aware that he was being charged with misconduct ..."


In the same vein is Award No. 551+1, Second Division, in which a "Rule 'N "' was referred to in thc> charge. In this case the Board observed:

        "Althoug'i Rule 'N' includes various offenses, including insuborlination, the record reveals that Claimant was fully familiar with the particular facts or events under ist4_gation as evidenced by his testimony ... consequently. he was neither deceived or misled as to the nature of the charges against him and had ample opportunity to prepare his defense ... Hence sae must f,onclude that the notice was sufficiently precise."


The (h-ganization has also asserted procedural imperfection in' that Claimant. was repres<:nted by but one Organization representative at the investigative hearing, despite Rule 34(h) cited above. In refutation the Claimant cites Rule 35(a) of tl,e Agreement, reading, in part: "At a reasonable time prior to the hearing such employee and his duly authorized representative ..." (emphasis supplied) in support of its position that the Agreement contemplates but a single organization representative to assist Claimant at the investigative
 Form 1 Award No. 8$93
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hearing. In Award No. 3568, Secoi d Division, the Board said of the language, in
 the pertinent Agreement, "the employee ... wcy be represented by the duly
 authorized r epre.,;entative oi' his craft" that it "plainly ccntemplaten a single
 representative..." and that "in vi :w of the plain language ... Claimant'H
 contractual right to be repi-er;ente l by a representative of his choice was not
 Cnfringed" r,Aien two Organizittion representatives were not permitted to represent
 f: laimant at an investigative hearilig. Also in Award No. 5(A2, Second DivilJon,
 Lt was stated: ".., the only reference in the rules to representation of employees.
 in discipU:ne proceedings (Rule 31+) is in the singular..."

 In any event, Rule 35 is the directly applicable rule respecting disciplinary hearings. Rule 34 relates to "Time Claims and Grievances" which suggests matters initiated upon the complaint of an employee rather than one in which charges have been brought against an employee. Additionally, Rule 34(h), speaks of "Conferences between local officers and local committee" and not of investigative type' h-earings". Consequently, Rule 34(h) is not really germane to Claimant's rights of representation at an investigative hearing and the Board, therefore, finds that failure -to be raWagented by more than one Organization representative at the investigative hearing did not deprive Claimant of any rights to which lie was entitled.

 Regarding; the discipline assessed in i1his case it may be observed that Claimant's work record, prior to the incident involved here, was extremely npot ty. ft includes the Following episode;;; a) a letter relating to being off duty for .'JO dayu; without a proper medical leave of absence; b) letters regarding abiwllce from ;fob for several days; c) letters regarding failure to report for work (xi time or failure to report off from work o7i time; e) letter instructing Claimant to improve attendance record; f) letters relating to sleeping on the job.

 'Che Organization contends that these episodes do not relate to the charges in this case and that, therefore, it is not appropriate to take them into account in determining the discipline appropriate here even if it is assumed that the charges have beer. proved.

 In the first place, it might be noted that, for example, a charge such as sleeping on the job is not totally unrelated to the formal charge here of being non-alert. Secondly, this type of past work record bespeaks an attitude of irresponsibility and unreliability on.the part of Claimant in reference to his job, which perhaps, is not so distantly connected to the type of conduct in which Claimant was here charged as engaging. Also, that past disziplinary infractions need not be qualitatively related to the instant charge, to be taken into account in assessing discipline regarding such instant charge as inlicated by a case such as Award No. 6617, Second Division. There the charge was teat Claimant had recklessly and carelessly driven Carrier's vehicle. In considering the possibility of a reduction in the assessed penalty against Claimant, which it did not grant, the Board mentioned a ten. day suspension for failure to protect an assignment and properly perform his work, that he received two written and two verbal reprimands and a 15 day suspension (it is not noted in relation to what events) and that he was in and out of Veteran's Hospital from September 29, 1971 to March 6, 1972.
 sc:!n;t l Award No. 8943
 :.~ G Docket No. 8838
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 Additionally, there is a long line of cases standing for the proposition that carrier determination of discipline cannot be modified by the Board unless arbitrary, capricious or unreasonable. See, for example, Award No. 6481, Second Division, where the Board stated: "We are limited ... in cases involving, disciplim-ary action ... (to) determining) wlietlier Claimant was afforded a fair hearing and that the penalty assessed was not arbitrary, capricious or unreasonable." Similarly, in Award No. 6448, Socond Division, it was said: "This Board has repeatedly refused to interfere with the determination of employers as to discipline assessed for proven :nfractions unless same is clearly excessive and unreasonable."

 In this case, in the context of Claimant's long record of notations regarding questionable work performance, there seem no compelling reasons to amend the discipline assessed by Carrier. Thus, in light of the doctrine that such assessments should not be lightly modified by this Board, the discipline based on proof of the charges must be upleld.

                        A W A R D


    Claim denied.


                            NATIONAL RAILROAD ADTUSTMNT BOARD

                            By Order of Second Division


Attest: Executive Secretary
 National Railroad Ad;jiistment Board

 } .., J-~'t~ '~1-C.X~ y~ _.--'rc~...

    Rosetnar a Brasch - Administrative Assistant


Dated at C''iicago, Illinois, :his 3rd day of March, 1982.