Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9113
SECOND DIVISION Docket NO. 92+9
2-CR-MA-182
The Second Division consisted of the regular members and in
addition Referee Albert A. Blum when award was rendered.
( International Association of Machinists and
Parties to Dispute:
( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That Machinist J. W. Gentry, Man No. 538030, was held for trial on
July 3, 1980.
2. That, accordingly, Machinist J. W. Gentry's record be cleared and he be
compensated for each and every day he was suspended.
w
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
An altercation took place on the morning of Tuesday, June 24, 1980 between
the Claimant, Machinist J. W. Gentry, and Foreman C. E. James at about 10:x+5 a.m.
The Claimant went to Superintendent B. H. Brandimarte's office to report what
had happened. He, then, returned to work. At about 1:30 P.m., the Claimant was
removed from service. The altercation had started when the Claimant entered
the wheel shop and was told by Foreman James to leave. This led to an argument
and eventually to a physical altercation.
The Organization's posture is, first, that what happened should not have
resulted in the Carrier removing the Claimant from service at 1:30 p.m. since
his activities were not detrimental to anyone. Moreover, the Organization does
not feel that the Claimant was responsible for what happened. The Foreman involved
had a history of altercations with other employes; he requested a bump back to
the Machinist's craft after this dispute; he had started the events on June 24,
1980 by telling the Claimant "to get the Hell out of the Shop"; he did not know
how to discipline an employe properly; and that he struck the Claimant first and
that the Claimant's response was defensive in nature.
The Carrier's position is that the Claimant had been told by Foreman James
earlier not to enter the wheel shop; and that when he was told again by the
Foreman to leave, the Claimant engaged in a shouting match with Foreman James
which eventually resulted in the physical altercation.
Form 1
Page 2
Award No. 9113
Docket No. 9249
2-CR-MA-'82
The one fact that is clear is that the Claimant had been told by Foreman
James not to enter the wheel shop and he had done so, regardless of the
justification. But a supervisor has some responsibilities too if an employe
disobeys that instruction. He does not curse at him, swear at him, and then
push him. All of the evidence indicates that Foreman James was the instigator
of the violence. To punish the Claimant for getting his body in the way of the
Foreman's push is to equate the victim and the victimizer, particularly in this
case when the person starting the violence was a supervisor.
The burden of proof needed for the Carrier to justify the suspension of
the Claimant for six days was not met in this case and he should be made whole
for the six
(6)
days he was out of service.
A W A R D
Claim sustained.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY _
R semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of June, 1982.