Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9170
SECOND DIVISION Docket No.
9268
2-CR-SM-182
The Second Division consisted of the regular members and in
addition Referee Edward
M.
Hogan when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the provisions of the current agreement Rule
7
in particular has
been violated account Sheet Metal Wk. (Pipefitter) Martin A. Myers was
given formal investigation, held on July
16, 1979,
resulting in excessive
discipline being rendered, in that he was dismissed from service
effective July
25, 1979.
2. That because of such excessive discipline being rendered, that the
Carrier be required to re-instate and compensate Mr. Martin A. Myers for
all time lost, the record of his dismissal be removed from his personal
record and that he be made whole for all fringe benefits during the
time held out of service.
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 Divisionof the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was dismissed from the service of the carrier following a formal
investigation on the charges of violation of Rule
4002
of the Maintenance of
Equipment Safety Rules and conduct unbecoming an employe, to-wit: drinking on the
carrier's property during working hours.
This is an extremely difficult case that was not only forcefully and well
argued by the parties, but also one arising out of an undercover investigation by
railroad security personnel from which numerous other cases have been argued
or are pending before this Board. We will strictly confine and limit our
consideration to the facts presented in this appeal alone.
The Organization contends that the evidence as presented at the hearing was
not substantial or of such a credible nature as to warrant a finding of guilt
and the subsequent imposition of the dismissal against the Claimant. The principle
testimony in question was that presented by Conrail Undercover Security Officer
Bedra.
Forth
1
Page 2
Award No. 9170
Docket No. 9268
2-CR-SM-182
The central issue in this case is that of the credibility of witnesses.
This Board is not a truer-of-fact; it does not have original jurisdiction. Absent
a patently unreasonable conclusion, abuse of discretion, or arbitrary or capricious
behavior on the part of the hearing officer, this Board will not overturn the
reasonable conclusions as to the probative value and weight of the evidence as
determined by the hearing officer. We maintain this position for long-settled
and valid reasons -- only the truer-of-fact receives the evidence, hears the
testimony, and observes the demeanor of the witnesses. The reasonable conclusions
drawn from all the testimony will not be upset by this Board substituting its
judgment for that of the opinion, differing viewpoints as to evidence, and
diametrically opposed testimony. However, we find no unreasonable conclusions as
adduced by the hearing officer in an objective review of the record in this case.
(See Second Division Awards 1809, 3676, 6084, 6372).
This Board is extremely careful to fully examine allegations of abuse of
discretion and arbitrary or capricious behavior on the part of the hearing officer.
Here, after a painstaking review(), we find none so as to overturn the
findings and penalty. Although employes have long viewed undercover activities
on the part of the employer (in the railroad industry as well as all others also)
with antipathy, we cannot say that this was an unpermitted or illegal activity.
The safety of all employes is jeopardized by the consumption of drugs or
alcoholic beverages on the carrier's property during working hours. To permit this
activity, or to treat it lightly, would not only be a disservice to the carrier, but
also more importantly, to the hundreds of other employes in the employ of the
carrier.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
4r0_s,Amarie
Brasch - Administrative Assistant
Dated at( Chicago, Illinois, this 30th day of June, 1982.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
We further find that a typographical error exists in Awards of previous cases
as supplied to the Board by the Carrier in this case.