F orm I
NATIONAL RAILROAD
ADJUSTMENT
BOARD Award No. 9363
SECOND DIVISION Docket No.
9302
2-B&O-MA-'83
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
( International Association of Machinists and
Parties to Dispute: { Aerospace Workers
Dispute: Claim of Employes:
( Baltimore and Ohio Railroad Company
1. That David E. Welch, Machinist Helper, Cumberland, Maryland, was held
out of service by the Baltimore and Ohio Railroad Company on October 1;1,
1979,
Pending outcome of investigation held on October
23, 1979,
and,
as a result of the investigation, David E. Welch was unjustifiably
dismissed from the service of the Baltimore and Ohio Railroad Company on
November
5, 1979.
That, accordingly, the Baltimore and Ohio Railroad Company be ordered
to reinstate Machinist Helper D. E. Welch to his former position,
compensate him far all time lost from October 11,
1979,
until restored
to service with seniority unimpaired, made whole for all vacation
rights, and payment for Health and Welfare and Death Benefits, under
Travelers Insurance Policy
GA-23000
and Railroad Employees' National
Dental Plan GP-12000.
Findings:
z
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 aver the dispute
involved herein.
Parties to said dispute waived right of appearance at
Claimant was employed as a Machinist Helper, and, at the time of the
occurrence giving rise to this dispute, had been in the service of the Carrier
about two years. Following an investigation conducted on October 23,
1979,
Claimant was dismissed from the service of the Carrier on November
5, 1979.
Claimant was charged with failure to wear proper eye protection on Wednesday,
October 10,
1979
in violation of instructions and Company policy letter dated
June 11,
1979,
with insubordination toward an assistant superintendent of
production of the Carrier, by use of vile and abusive language and with a refusal
to obey direct instructions to wear the safety glasses. A copy of the transcript
of the investigation has been made a part of the record.
hearing thereon.
Form 1 Award No. 9363
Page 2 Docket No. 9302
2-Ba;o-MA-' 83
The Carrier contends that substantial evidence was adduced at a fair and
impartial investigation which conclusively prayed that Claimant in fact failed to
wear proper eye protection on Wednesday, October 10, 1979 and was insubordinate
toward an assistant superintendent of production by both the use of vile and
abusive language and by refusal to obey the supervisor's instructions to wear
safety glasses, as charged. Additionally, the Carrier maintains that under all
the facts and circumstances of this matter, including the prior disciplinary record
of Claimant, dismissal was clearly justified.
It was contended by the Organization that sufficient evidence was not
adduced to prove the charges; that the Carrier's sole witness to the occurrence
charged was unsupported in his testimony by any other witness; that the complaine:dof conduct was within the generally accepted normal and routine behavior throughout
the railroad industry and, therefore, the language allegedly used was not
insubordinate; and that Claimant did in fact comply with the instructions of
the supervisor to wear safety glasses, so that no insubordination whatsoever in
fact occurred. It is further contended by the Organization that the discipline
administered was wrong, arbitrary, capricious and excessive under these facts.
After careful consideration of the evidence on the record, the Board finds
that the record contains substantial proof supporting the allegations that
Claimant was insubordinate on the day in question. Two Carrier witnesses
testified that each had encountered Claimant during the course of the occurrence
when he was not wearing his safety glasses. Since the second supervisor met
Claimant subsequent to the order by the initial supervisor far Claimant to put
his safety glasses on, there was indeed probative evidence from which the hearing
officer could legitimately conclude that the initial supervisor's version of the
events was closer to the truth than the Claimant's self-serving denials. See
Second Division Awards 7128, 7193,
7161,
732+ and Third Division Award 22638.
Under the facts and circumstances, the refusal to continue wearing the safety
glasses after the direct order to do so constituted insubordination. Second
Division Award No.
7+37.
With respect to whether Claimant in fact used vile and abusive language as
an insubordinate act directed at the assistant superintendent of production and
did not engage in meer shop talk, (Third Division Award No. 21.299), it is apparent
that there is an issue of credibility concerning the testimony of Claimant and
the witnesses~for the Carrier. The Organization contends that the credibility
conflict results in no substantial evidence buttressing the finding of the hearing
officer. Prior awards often note the fact that the Board is neither authorized nor
constituted to make such credibility determinations, since issues of credibility
must be determined by those who receive the evidence and testimony. On this record,
we have no basis for substituting our judgment for that of the hearing officer.
Third Division Award 22721 (Sickles). See also Second Division Awards 8280,
7912, 7955 201 and 7973. See especially Second Division Award 7325 (McBrearty).
As noted in Public Law Board No. 2566, Award No. 2 (Carter) it is stated:
"It is the opinion of this Board that in railroad operations
of any kind, safety is of primary importance. In order to
properly carry out its operations, a Carrier must insist
Form 1
Page
3
Award No. 9363
Docket No.
9302
2-B&o-MA-'
83
that its employees faithfully and carefully execute the
responsibilities which develop upon them.
Based on the record before it, there is no proper basis for
this Board to interfere with the discipline imposed by the
Carrier."
Likewise,
under the circumstances of the instant matter, nothing in the
record leads this Board to the conclusion that the discipline assessed was
arbitrary, capricious, discriminatory or excessive. (Second Division Award
6+89.)
Therefore, the Board rules to uphold the findings and determinations
made by the hearing officer from evidence adduced at the October
23,
1979
investigatory hearing.
A W
A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMNT BOARD
By Order of Second Division
By
~1.o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of January 1983.