Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9282
SECOND DIVISION Docket No. 8906
2-SLSF-CM-'82
The Second Division consisted of the regular members and in
addition Referee Goerge V. Boyle when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( St. Louis-San Francisco Railway Company
Dispute: Claim of Employes:
1. That the St. Louis-San Francisco Railway Company violated the controlling
Agreement when it improperly and unjustly dismissed Carman Carl Fleming
from service on February 13, 1980, and subsequently discharged him from
service following formal investigation held on February 29,
1980.
2. That accordingly the St. Louis-San Francisco Railway Company be ordered
to return Carl Fleming to service immediately, with pay for all time
lost, seniority rights unimpaired, vacation and all other rights
unimpaired.
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.
The claimant was a
5i
year employe of the Carrier. At the time of his
dismissal he was employed as a car inspector at the Capleville Yards in Memphis,
Tennessee. He was removed from servile for allegedly verbally and physically
abusing his foreman.
The Employes, on behalf of the claimant, assert that the carrier erred
procedurally by late and improper notification and in not holding a hearing
promptly.
They also assert that there is no substantial evidence of wrong doing which
would warrant the carrier taking such action with respect to the claimant.
The Board disagrees on both counts. There were no substantial defects in
the notification of hearing procedures nor were these issues raised on the
property as is required at the time of the hearing (Awards No. 7955, 1402. 1788,
3668, 4035, 6373, 811+5 and 8563.)
With regard to the evidence of a dischargeable offense, the hearing officer
heard testimony from both the claimant and his foreman which was contradictory.
Form 1
Page 2
Award No. 9282
Docket No.
8906
2-SLSF-CM-'82
Based upon this testimony the hearing officer found the foreman's account
more credible and took action in accordance therewith.
It has been well established that the reconciliation of directly contradictory
testimony and establishment of witness credibility is properly the function of
the hearing officer and not the Board who reviews the appeals. Numerous awards
might be cited (Nos.
1788, 3676,
5211,
6084, 6195, 6372, 6408, 6489),
but it has
been said best in Award No.
1809:
"The Board is in no position to resolve conflicts
in the evidence. The credibility of witnesses and the weight to be given their
testimony is for the trier of the facts to determine. If there is evidence of a
substantial character in the record which supports the action of the carrier, and
it appears that a fair hearing has been accorded the employe charged, a finding of
guilt will not be disturbed by this Board, unless some arbitrary action can be
established."
In this case there is certainly "evidence of a substantial character". Also,
in reviewing claimant's personal work record, the actions reported in the instant
case by the foreman are consistent with prior escapades. Moreover the claimant's
admission that he had been fired from his previous job for striking a supervisor
tends to corroborate the foreman's account.
The representative's citation of his understanding of the "Federal Disclosure
Act" is irrelevant and not worthy of consideration as a mitigating circumstance.
Accordingly the claim is denied in its entirety.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad AdjustmT--zt Board
By =~Lc~
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of August, 1982.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division