Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No:
SECOND DIVISION Docket No.
890+
2-CR-MA-182
The Second Division consisted of the regular members ant. in
addition Referee George V. Boyle when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
K. D. Klatt to service and compensate him for all pay lost up to time of
restoration to service at the prevailing Machinist rate of pay.
2. That Machinist K. D. Klatt be compensated for all
insurance benefits,
vacation benefits, holiday benefits, and any other benefits that may
have accrued and were lost during this period, in accordance with Rule
7-A-I (e) of the prevailing Agreement which was effective May 1,
1979·
3.
The Consolidated Rail Corporation violated Rule 6-A-1 (a) and (b) of
the prevailing Agreement effective May 1,
1979.
4.
The Consolidated Rail Corporation violated Rule
6-A-3
(b) of the prevailing
Agreement effective May 1,
1979.
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,
193+.
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 employed as a Machinist at the Carrier's Stanley Diesel
Terminal in Toledo, Ohio for a period of almost three
(3)
years. He was dismissed
from service on July 8,
1979
on charges that he had violated "Rule x+002 of the
Maintenance of Equipment Safety Rules, on June 25,
1979."
Specifically he was
charged with
"drinking alcoholic
beverages
...
while on duty and under
pay ...,
smoking marijuana .., while on duty and under pay
...;
conduct unbecoming an employe
in that you were observed participating in illegal and unauthorized activities
when you were observed playing cards and gambling while on duty and under pay as
a Machinist
..."
The Employes on behalf of the Claimant assert that:
Form 1 Award No. 9292
Page 2 Docket No. 890+
2-CR-MA-'82
1) The Carrier did not have adequate proof, nor sufficient evidence to
warrant discharge of the claimant;
2) the Carrier violated Rule 6-A-3(b) by not producing witnesses as required
by the agreement;
3) the Carrier violated Rule 6-A-1(a) and (b) by improperly suspending him
after the alleged offense and prior to his hearing;
the Carrier did not afford the claimant a fair trial since the hearing
officer was prejudiced;
5)
the Carrier improperly used the Claimant's record in determining his
guilt or innocence.
On reviewing the evidence presented at the hearing the Board is convinced that
the Carrier acted reasonably upon the testimony of its undercover agent who was
an eye witness to the conduct with which the Claimant was charged. He was a trained
officer with a long and capable record of education and experience in this field.
He had no motive to fabricate the particulars of this episode. The Carrier was
presented, not only with substantial evidence, but a preponderance of evidence in
the form of the undercover agent's detailed narration in contrast with the
Claimant's simple declaration of innocence.
The Employes cite Rule 6-A-3(b) as requiring the Carrier to produce any
witnesses who could testify with respect to the allegation. Rule 6-A-3(b) reads:
"If he desires to be represented at such trial, he may
be accompanied by a union representative(s). The accused
employee or his union representatives (not to exceed two
(2)) shall be permitted to question witnesses insofar as the
interests of the accused employee are concerned. Actual
pertinent witnesses to the offense will be requested to
attend the trial by the Company. The employee shall make his
own arrangements for the presence of any witnesses appearing in
his behalf, and no expense incident thereto shall be borne by
the Company."
Reading the entire rule and placing the term "Actual, pertinent witnesses"
in its context, it is clear that the rule is intended to place upon the Carrier
the responsibility for producing its witnesses at the trial for questioning and
cross examination by the Claimant and are not to be permitted to rely solely
upon unchallenged affidavits or written testimony placed in evidence. If the
Carrier believes that only one (1) witness is sufficient to prove its case it is;
free to take the risk of producing only that witness and need not require the
presence of others to give corroboration.
On the other hand, should the Employes wish to supply witnesses, whether
supervisory personnel or members of their own organization, the Rule allows them
to procure those witnesses. Also the G-250, notice, states, "you may produce
witnesses on your own behalf". If the Employes' organization felt that there were
witnesses who might refute the Carrier-Agent's testimony, it was incumbent upon
Form 1
Page
3
Award No. 9292
Docket No. 890+
2-CR-MA-'82
them to: 1) present them at the hearing, 2) request the Carrier to produce its
personnel, or
3)
request a recess until the witnesses were made available. Having
failed to do so the Employes cannot legitimately claim that the Carrier violated
the rule.
With regard to the claim that the Carrier violated Rule 6-A-1(a) and (b)
by improperly holding the Claimant out of service pending trial the Employes are
in error. This was a "major offense" as provided in the rule, the "retention in
service" of the "employee suspected by the Company to be guilty" could have been
"detrimental" to himself, "another person or the Company", and he was given a
fair and impartial trial before dismissal. The fact that he was permitted to work
for a week before action was taken does not preclude the Carrier from subsequently
acting nor should the delay be taken as evidence of blamelessness.
The charge of bias on the part of the hearing officer is unsubstantiated by
the record.
Finally, the assertion that the Claimant's record should not be used at the
hearing would be valid if such had been used as evidence of the offenses with
which the Claimant was charged. In fact, clearly the record was reviewed solely
as a means of judging the appropriate penalty to be assessed and therefore
legitimately employed.
The offenses of drinking, smoking marijuana, playing cards and gambling while
on duty, on the Carrier's premises, while on a paid status are serious ones
involving jeopardy to the individual, his fellow employes, the employers` property
as well as the general public. For these reasons such conduct cannot be condoned
nor permitted.
The Carrier heard probative evidence of such conduct on the part of the
Claimant and its actions were proper in response thereto.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of August, 1982,
NATIONAL RA12ROAD ADJUSTMENT BOARD
By Order of Second Division