Form 1 NATIONAL I?AIIROAD ADJUSTMENT
BOARD Award No.
8952
SECOND DIVISION Docket No.
9126
2-CMStP&P-EW-'82
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
International Brotherhood of Electrical Workers
Parties to Dispute:
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
violated the current agreement when Electrician Helper Willie Jenning.:
was unjustly dismissed from service on January
16, 1979
for an allege:
altercation.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
be ordered to
make
Electrician Helper Willie Jennings whole by reinsta:'ing
him to service with all seniority and other rights unimpaired and
repaying all lost wages and benefits and his record cleared.
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, Mr. W. Jennings, was formerly employed by the Chicago, Milwaukee,
St. Paul and Pacific Railroad Company as an overhead crane operator,
3:30
to 12:00
midnight shift, at the Milwaukee Locomotive Shops in Milwaukee,
Wisconsin.
On December 12,
1978
Claimant received notice from the Carrier to appear for
a formal. investigation on December
19, 1978.
The purpose of the investigation
was to ascertain the facts of an alleged violation by the Claimant of Safety
Rule No.
3
of the Safety Rules Governing Employees of the Car Department,
Locomotive Department and Material Division, effective January 1,
1974.
Safety Rule No.
3
states:
"Playing practical jokes, scuffling, fighting or wrestling while
on duty or on Company property is prohibited."
As a result of the hearing held on December
19, 1978
in the office of Shop
Superintendent, Mr. M. J. Nielsen, Milwaukee LD Shop, Claimant was notified on
January
16, 1979
that his services were terminated with the Carrier, effective
on that date.
J' .`).'i Std
T`xa~.;i:-
G
Award No.
8952
Docket No.
9126
2-CMStP&P-EW-'
8G'
Claimant was terminated because he was accused by electrician helper,
Mr. S. Sedlar of allegedly threatening the latter verbally and with a knife in
Building
L,D--37
at approximately
5:30
P.M. on Friday, December
8, 1978.
First of a11, Claimant has never denied the verbal threat to the effect
that tie told Mr. Sedlar that "he would cut his head off". Claimant did say,
however, that he was only trying to scare Mr. Sedlar. Secondly, the only
evidentiary point in dispute is whether Claimant accompanied this verbal threat
with a knife. A knife was never found and Claimant on a number of occasions
denied that he had one although he did say that "when (he) went up to (Mr.
Sedlar) (he) had a nail clipper in (his) pocket (which he) flipped out ..." and
that tie also picked
up
"a washer off the table that was shiny" (ibid.). On
the other hand, Claimant's accuser, as well as co-workers Messrs. T. 0"ala
(electrician helper), M. Robertson (electrician Helper), and W. Tandetzke
(chauffeur) have all testified that they saw and heard Claimant threaten
Ms. Sedlar verbally and with a knife which Mr. Tandetzke described as similar
to "a tar paper knife with a maroon handle".
The Board agrees that it is established that the "burden of proof is on the
Carrier in cases of this nature" (First Division Awards
111+79,
15410). At the
same time, the Board holds that this burden has been met in the instant case by
means of "substantial evidence" (See Second Division Awards
7325, 7473, 8023,
8291).
It is not the role of the Board, which serves an appellate function,
to resolve issues of credibility, nor to substitute its judgement for that of
Carriers in discipline cases; its role, as noted above, is to determine if there
is substantial evidence to sustain a finding of guilt (See Second Division
Awards
7325, 7912, 7955 7973, 8201).
As an additional point, it is also well established policy of the Board
that "Carrier not only has the duty to protect its employees from injury
inflicted by one employee on another, but also the right to expect that its
employees will not physically harm fellow employees" (Second Division Award
6193;
See also Second Division Awards
5681, 5139
and
2191).
A WAR D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By
,_---`,Aosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 3rd dey of March, 198_2.
NATIONAL RAILROAD ADJUSTfENT BOARD
By Order of Second Division