F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9220
SECOND DIVISION Docket No. 8986
2-WP-FO-'82
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Western Pacific Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement Firemen and Oiler J. V. Vuscovich, was
unjustly suspended from the service of the Carrier, for fifteen (15)
working days without pay.
2. That accordingly, the Carrier be ordered to compensate the aforesaid
employee for the time lost of the fifteen
(15)
working days he was held
out of service. At the pro-rata rate of the position he held at the time
he was suspended.
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 Tabor Act
as approved June 21, 193+.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This claim involves a charge that Claimant removed another employe's personal
property without that employe's permission. An investigation was held on October
16, 1979, and, as a result, Claimant was issued a fifteen
(15)
day suspension.
On the day in question, October
g, 1979,
Claimant was assigned as a Hostler
Helper at 8:00 A.M. That morning, the Shop Superintendent pointed out to Claimant
he was wearing rubber boots, which are dangerous to wear when climbing onto and off
of locomotives in motion. Claimant's leather boots were in poor condition.
Claimant was advised he would have to be put on steam cleaning. Claimant requested
permission to leave the property and purchase a pair of boots. This was denied.
Claimant asked Diesel Foreman for permission to leave in order to arrange a court
date. A few minutes later, Claimant returned and stated he did not have to leave
because he had borrowed a pair of boots and was ready to return to his job as a
Hostler Helper. That same afternoon, an employe came to the Shop Superintendent
and reported that someone had removed his boots from his locker. The boots were
placed on top of his locker the next morning.
Form 1
Page 2
Award No. 9220
Docket No.
8986
2-WP-FO-'82
The Organization contends Claimant's rights were violated by the Hearing
Officer, who ruled the Local Chairman could not be his representative because he
was a witness and, further-_uore, Carrier failed to produce witnesses or evidence to
substantiate charges against Claimant.
In this matter, the Local Chairman was an essential witness to Claimant's
defense. All witnesses were excluded from the investigation until they testified.
Claimant was represented by the Union Secretary and Committeeman. Several controverted
issues of fact existed herein, and the exclusion of all witnesses, including the
Local Chairman, was proper exercise of discretion by the Hearing Officer.
Analysis of the record fails to support the Organization's contention that
Carrier failed to prove the charges. It is not the function of the Board to
substitute its judgement where there is conflicting testimony as long as substantial
evidence exists to support the Carrier's conclusions. This is not a case of theft.
Claimant is charged with removal of personal property without permission. Regardless of which pair of boots were actually worn by Claimant, the preponderance of
evidence fully upholds the Carrier's judgement the boots were taken by Claimant
without permission of the owner. If the decision to impose the degree of penalty
rested exclusively with this Board, perhaps,.a lesser discipline might have been
issued. Having judged the Carrier's findings in the affirmative, however, we
are disinclined to disturb the penalty.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAII1t0AD ADJUSTMENT BOARD
By Order of Second Division
By ~°'~
<_~7
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of July, 1982.