Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9366
SECOND DIVISION Docket No. 8961
2-CR-MA-183
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. 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
G. W. Hob son 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 G. W. Hobson 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-1(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.
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, 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.
Claimant, a Machinist with seniority date of April 11, 1967, at Carrier's
Stanley Diesel Terminal, Toledo, Ohio, was charged with:
"1) Being out of your assigned work area and leaving company
property in a Pontiac automobile, license A6480g, at
approximately 6:15 P.m. on June 26, 1979, while you were
on duty and under pay as a Machinist at the Stanley
Diesel facility.
Form 1 Award No. 9366
Page 2 Docket No. 8961
2-cR-MA-'
83
2) Possession of alcoholic beverages when you were
observed carryin two (2) packages of Miller's
Lite Beer under
N
ramp at Stanley Diesel Terminal
at approximately 6:x+0 p.m., while you were on duty
and under pay as a Machinist at the Stanley Diesel
facility on June 26, 1979·
3) Conduct unbecoming an employee in that you were
observed participating in illegal and unauthorized
activities when you were observed playing cards and
gambling in the Stanley Diesel Terminal from approxi
mately 7:50 P.m. to 10:20 p.m. on June 26, 1979,
while you were on duty as a Machinist at the Stanley
Diesel facility.
4)
Violation of Rule 4002 of the Maintenance of
Equipment Safety Rules in that you were observed
drinking alcoholic beverages in Stanley Diesel
Terminal at approximately 8:50 P.m., 9:20 p.m.,
and 9:55 P.m. on June 26, 1979, while you were on
duty and under pay as a Machinist at the Stanley
Diesel facility."
Pursuant to an investigatory hearing which was held on July 17, 1979,
Claimant was adjudged guilty as charged and was terminated from Carrier's service
low
effective July 25, 1979· Said termination is the basis of the instant claim.
The essence of Organization's position in this dispute is that, insofar as
Claimant categorically denied all of the charges which were brought against him,
Carrier's reliance upon the unsubstantiated testimony of a single witness
(Patrolman D. A. Bedra, a Conrail police officer who was working undercover as
a Laborer in the Stanley Diesel Shop on the evening of June 26, 1979, and who
alleged to have observed Claimant's actions as charged), is insufficient proof
upon, which to establish Claimant's guilt (Second Division Awards 3869, 4046,
5850, 6522, 6528 and 6580). According to Organization, numerous other sources
of proof were available to Carrier to substantiate its position but such evidence
and/or witnesses, for whatever reason, were not produced by Carrier in support
of its respective position.
In addition to the foregoing, Organization further argues that Carrier
committed various procedural infractions in the processing of this matter. Thus,
in this regard, Organization specifically charges that Carrier violated Rules
6-A-1 (a) and (b) of the controlling agreement by permitting Claimant to remain
in service for one (1) week following his alleged infraction and removing him
without a hearing when Claimant had not been charged with committing a "major
offense" as specified in the cited Rule. Similarly, Organization also charges
that Carrier further violated Rule 6-A-3 (b) by not producing all "actual,
pertinent witnesses to the offense" at the hearing. Lastly, Organization
alleges that "... Carrier did not give the Claimant a fair and impartial trial
because they placed the Claimant's past record into the trial" (Second Division -
Award 668+ ) ,
F orm 1 Award No.
9366
Page
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Docket No.
8961
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Simply stated, Carrier's position regarding the merits portion of this dispute
is that the testimony of Patrolman Bedra is sufficient evidence to conclusively
prove that Claimant was guilty of the infraction as charged. Additionally,
Carrier maintains that as the "crier of facts" Carrier has the prerogative to
make determinations of fact; and that where there is "... complete, credible
evidence to support Carrier's
assessment of
discipline..." then the Board should.
not upset such findings (First Division Award 11+690). Related to the foregoing,
Carrier further asserts that Claimant's defense in this matter was limited merely
to a denial of the charges, and that no other witnesses or evidence was presented
in support of his basic position.
In reference to Organization's procedural arguments, Carrier maintains that:
Claimant's removal from service on July 13, 1979, was in compliance with Rule 6-~A-1
(a) and (b) because said rules establish that it is within Carrier's discretion
and judgement to hold an employe out of service as well as to determine what
situations constitute a "major offense". Carrier also contends that Claimant was
not immediately held out of service on June 26, 1979, because the applicable rules
do not require "immediate action" on the part of the Employer, and the specific
set of circumstances involved in the instant dispute warranted Carrier's retain:Cng
of Claimant and other involved employes in their positions pending further
scheduling arrangements. According to Carrier, such a procedure is proper
(Award No. 1 of Public Law Board No. 2613 ) .
As its final argument regarding Organization's procedural objections,
Carrier contends that, in view of the sufficiency of Patrolman Bedra's testimony,
there was no need to present any other witnesses and/or evidence in support of
Carrier's position; and, furthermore, Claimant had the right to call any and all
witnesses in his own behalf, but he failed to do so.
The instant case, by and large, focuses upon the question of the sufficiency
of the evidence of a single witness, Patrolman Bedra, who was employed by Carrier
as an undercover agent and who alleged to have observed Claimant commit the
various infractions as charged on the evening of June 26, 1979. Apart from the
fact that this Board is cognizant of Carrier's well-established authority to
make credibility determinations when there is conflicting testimony in the record
(Second Division Award No. 752; Third Division Awards No. 19696 and 21290),
the Board is of the opinion that the evidence which has been adduced by Carrier
in this case is not mere "circumstantial evidence" as is the thrust of Organization's
particular case citations (Second Division Awards No. 3869, 4Of+6,
5850,
6522,
6528 and 6580; Third Division Award No. 4684). Indeed, Carrier's evidence is
not circumstantial evidence but is evidence of the highest order -- the testimony
of an eye witness whose offerings have neither been impeached, discredited nor
tained in the least way. Of even greater significance, however, is the fact
that insofar as the precise same issue has already been decided by this Board and
by several other Boards in a series of companion cases to the instant case,
the Board can see no good reason to depart from the decisions which were
rendered therein (Second Division Awards No. 9170, 9288, 8289, 9290, 9291, 9292.,
9300, 9301 and 9302).
Form I
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Award No. 9366
Docket No. 8961
2-CR-MA-183
Having resolved the merits portion of this dispute, we turn next to the
procedural objections which have been raised by Organization. Here too, the
Board determines that Carrier's actions were proper because: (1) Rule 6-A-1(b)
gives Carrier discretionary authority either to hold or not to hold an employe out
of service pending an investigation when a "major offense" is alleged to have
been committed (First Division Awards No.
19+77
and 20163; Second Division Award
757+;
and Third Division Award 18536); (2) in the instant case, because of the
large number of employes who were involved in the incident, Carrier's concern
for scheduling difficulties which might, due to numerous suspensions, was a
good reason to delay Claimant's suspension; and (3) inclusion of Claimant's
past disciplinary record into the trial record was not undertaken to establish
Claimant's guilt in the instant case, but rather to determine the proper penalty
to be assessed thereafter.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad
Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
~emarie Brasch - Administrative Assistant
DatedIf
-? Chicago, Illinois, this 2nd day of February, 1983.