Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9174
SECOND DIVISION Docket No. 9?82
2-WP-MA-'82
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Western Pacific Railroad Company
Dispute: Claim of Employee:
1. That under the current Agreement Machinist Helper A. Tijerino (hereinafter referred to as Claimant) was improperly dismissed from the service;
of the Carrier on January 22, 1980.
2. That, accordingly, the Carrier be ordered to restore Claimant to service:
with seniority and service rights unimpaired and with compensation for
all wage loss from date of dismissal to date of restoration to 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 Division of 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. The Organization's contention is that the Claimant was improperly
dismissed from service because the Carrier did not prove substantial evidence to
support the charges.
The crucial issue in this case is the credibility of evidence. However, this
Board does not have original jurisdiction; we are not a trier of fact. It is well
settled that, absent arbitrary or capricious behavior or abuse of discretion, this
Board will not substitute its judgment for that of the hearing officer. Only the
trier of fact receives the evidence, hears the testimony and observes the demeanor
of witnesses. Only the trier of fact can weigh the probative value of evidence.
Absent patently unreasonable conclusions, abuse of discretion, or arbitrary or
capricious behavior on the part of the hearing officer, this Board will not
overturn the Carrier's conclusions of fact.
This Board scrupulously reviews the record when the allegations of unreasonable,
arbitrary or capricious behavior are alleged. Here we find none.
Form 1
Page 2
Award No. 9174
Docket No. 9282
2-WP-MA-'82
As to the additional charges of insubordination, this Board has held:
"Insubordination is a very serious charge in railroad labor
relations. The refusal of an employe to follow the instructions
of a Carrier official ordinarily is not justified unless the
employe's health and safety will be jeopardized..." (Second
Division Award 6339)
The general rule is obey the order of a superior and grieve later. We see no
circumstances in the instant case to warrant any different procedure.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
o marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of June, 1982.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division