Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9175
SECOND DIVISION Docket No. 9287
2-SOU-CM-182
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
~ Southern Railway Company
Dispute: Claim of Employes:
1. That Carman H. A. Scott, Winston-Salem, N. C. was unjustly suspended
from service from December 21st through December 30, 1979.
2. That the Carrier be ordered to pay Carman H. A. Scott nine (9) days'
pay at his regular rate of pay and eight (8) hours at time and one-half
rate, the amount of time lost while suspended from 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 were given due notice of hearing thereon.
Claimant was assessed a nine-day suspension after a formal investigation for
having made threats of bodily harm against the Carrier's Yardmaster. The Organization
contends that: 1.) the suspension was unwarranted insofar as the Claimant was
removed from service without just and sufficient cause and was not proven guilty
of the charge; and, 2.) the Carrier imposed an arbitrary exercise of discipline
power.
Claimant's duties included the inspection of trains to determine that all
mechanical equipment were in safe operating condition. The yardmaster's duties
were to see that trains depart the yard on time. The yardmaster had reported to
the Carrier's Mechanical Department that it appeared that there was a problem with
the car inspection operations. The record indicates that the Claimant took
exception to these reports and on two occasions approached the yardmaster and
exchanged words.
This Board finds that the Claimant received proper notice of the charges and
hearing, that Claimant was fully prepared to go forward at the hearing, and that
the Claimant received a full and fair hearing. Furthermore, this Board affirms
the finding of fact adduced at the investigation that threats, sufficient in force
to place the yardmaster in fear of bodily harm to his person with the apparent
Form 1 Award No. 9175
Page 2 Docket No.
9287
2-SOU-CM-182 Iwo
present ability of the esker to actuate those threats, were made by the Claimant.
Although the record indicates a slight argument toihe contrary, we do not find
it persuasive to overturn the finding of fact made at the investigation.
"The precedent is well established that this Board should not
substitute its judgment for that of the Carrier in discipline
cases where it has produced substantial evidence that the
offense charged was committed. While the administration of
disciplinary action should not seem haphazard or capricious,
it is clear that the imposition of discipline is within
managerial discretion." (Second Division Award
6196)
"It must be reiterated here that this Board is not a tribunal of
original jurisdiction. Our function, particularly in discipline
cases as established by the Railway Labor Act, as amended, is
to review the record, ascertain whether the Controlling Agreement
had been complied with; the Claimants were afforded due process;
there was substantial evidence to sustain a finding of just and
sufficient cause for the discipline imposed; and that the action
taken by the Carrier was not arbitrary, capricious or unreasonable."
(Second Division Award
6368)
No carrier can be expected to rum a safe and efficient operation when
threats of bodily harm are tolerated, whether those threats be among employes or
between employes and management. Therefore, we find that the Carrier, based upon
the record, was fully justified in reaching the findings of fact so reached and
also in imposing the measure of discipline so determined in this case. It should
be pointed out that there are always conflicts among occupations not only in the
rail transportation industry, but also all work situations. Threats are not
the method of resolving these problems. The controlling agreement clearly states
that the Claimant should have filed a grievance and resolved the problem in the
established process.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
By J
-R6se'parie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of June, 1982.