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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 937
SECOND DIVISION Docket No. 8951
2-WT-FO-183
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
The Washington Terminal Company
Dispute:. Claim of Employes:
1. That under the current agreement laborer K. T. Murphy was unjustly
dismissed from all service of the Carrier on April
16, 1979
as a result
of hearing held on April
9, 1979.
2. That accordingly the Carrier be ordered to make the aforementioned
K. Murphy whole by reinstating him to the service of the Carrier with
full seniority rights, vacation rights, andall other benefits that are
a condition of employment, unimpaired, with compensation for all lost
time plus 10% annual interest.
3.
That he be reimbursed for all losses sustained because of loss of
coverage under Health and Welfare and Life Insurance Agreements during
the time he was held out of service.
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 aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, a Laborer at Carrier's Washington Terminal Company with seniority
date of January
6, 1978,
was charged with the following:
"Violation of WT Co. General Rule 'N' '... being insubordinate
... is prohibited; and 'O', 'No employee shall be absent from
duty ... without permission' when, on March
29, 1979
at
approximately 12:20 p.m., you were instructed to clean the
Diesel Office and then report to the Ready Track and at
approximately 12:50 P.m. you had neither cleaned the office
nor had reported to the Ready Track, but were observed in the
Carmen's Lunchroom at the Car Shop, which was not on your
work assignment."
F orzn 1 Award No.
9397
Page
2
Docket No.
8951
2-WT-FO-'83
Pursuant to an investigation which was conducted on April
9, 1979,
Claimant
was adjudged guilty and was dismissed from Carrier's service effective April
16,
1979.
Said termination is now the basis of the instant claim.
Claimant's version of the discharge incident was that, as per his usual
practice, he had already cleaned the Diesel office earlier on the morning of
March
29, 1979,
and that at
12:20
p.m. Laborer Supervisor T. R. Jones merely
instructed him to report to the Ready Track for further assignment. According
to Claimant, when he arrived at the Ready Track no supervisor was available and
so he proceeded to search for a pick-up stick (broom handle with a sharpened
nail on the end of it) in order to pick up trash, but he was unable to find one.
While in the process of searching for a pick-up stick, Claimant entered the
Carmen's lunchroom for a drink of water and there he engaged in a conversation
for a few minutes with a Mr. DiPietro. At that point, Supervisor Jones and
General Foreman 0. G. Cone, who were searching for Claimant, entered the lunchroom and confronted Claimant.
The Supervisors' account of this same incident is that at approximately
12:20
p.m. on said date Supervisor Jones instructed Claimant to clean the
Roundhouse office and then to report to the Ready Track for further assignment.
Thereafter Supervisor Jones informed General Foreman Cone that he had given
Claimant the particular assignment. At
12:50
p.m. because the Roundhouse office
still had not yet been cleaned and Claimant still had not reported to the Ready
Track, Mr. Cone reported the matter to Mr. Jones and the two-then began
searching for Claimant. While so engaged they entered the Carmen's lunchroom
and there they allegedly found Claimant seated at a lunch table with his billfold
out and some papers lying on the table in front of him.
Organization's basic position in this dispute is that Carrier's "dismissing
of Claimant was an arbitrary, capricious, and unjust action and an abuse of
managerial discretion". In support of this contention Organization argues that
Claimant's hearing was unfair because Carrier completely failed to prove the
charges which had been filed against Claimant (Second Division Awards,
1178,
130., 13+8, 3562, 5313 5572, 6171+, 6419, 6713, 7002, 7172
and
73.3);
and that
Carrier's decision to dismiss Claimant was not based upon the facts of the
instant case, but instead was based on Claimant's previous past record which,
according to Organization, was not permissible (Award
4684, 11130, 11308, 12815,
and
13086).
Carrier's position herein is that there is sufficient evidence in the
record to support the charges which have been raised against Claimant; that _
Claimant's hearing was fairly and properly conducted; that Claimant was given
full opportunity to testify in his own behalf and to bring such witnesses which
he deemed proper; that at the hearing neither Claimant nor Organization had
any comment or criticism regarding the manner in which the hearing was conducted;
and that, although there is conflicting testimony in the record, absent a showing
that Carrier acted in bad faith or was prompted by any improper motive, Carrier
may properly elect to believe its own witnesses and the Board in such situations
may not substitute its judgement for that of Carrier.
Form I
Page
3
Award
Noo
9397
Docket No.
8951
2-WT-FO-'83
The Board has carefully read and studied the complete record in this dispute:
and finds that Carrier's position, as presented, is correct and, therefore, must be
supported. The rationale for the aforestated determination is based largely upon:
the fact that Claimant's testimony regarding several critical aspects of this
case is inconsistent and, at times, contradictory. Additionally, Claimant's
entire defense in this matter is merely a denial of Carriew's charges, whereas
Carrier's evidence is the testimony of the two (2) supervisors whose testimony
stands-unimpeached and thus constitutes a rime facie case. Furthermore,
Claimant's failure to produce evidence and or witnesses whom he cited in his
pleadings, invariably casts a negative light upon Claimant's entire defense.
Related to the foregoing, but certainly a separate consideration in this
analysis, is Claimant's unsupported contentions that he did not hear Supervisor
Jones assign him to clean the Roundhouse office at
12:20
p.m. on the day in
question, and that he did not have to perform this particular assignment because
he had completed it earlier that day as a part of his regular assignment. On
the one hand Claimant maintains that he did not hear Mr. Jones' instructions to
him; and, on the other hand, Claimant also maintains that Mr. Jones' instruction:.
were improper because he (Claimant) has previously performed the disputed work.
An analysis of this critical portion of the testimony suggests that Claimant
was endeavoring to "cover all bases" in his defense since there is no evidence
whatsoever in the record that Claimant's job duties were so narrowly defined that:
Claimant could not be assigned to perform additional duties even though he may
have performed those same duties earlier on his work shift. Indeed, Claimant's
own testimony clearly indicated that he had been assigned to perform additional
duties other than those regularly assigned to him and that Claimant performed
same when so assigned. As the Board views the instant case, Claimant was similarly
responsible on March
29, 1979,
and to refuse to carry out this assignment or to
delay in the performance thereof was an insubordinate act which Claimant engaged
in at his own peril.
Having made the foregoing determinations, any further comments concerning
Organization's contention regarding Carrier's reference to Claimant's past record
at the investigation is now considered to be unnecessary. Carrier's charges
against Claimant were supported by substantial evidence and Carrier's reference
to Claimant's work record for the sole purpose of determining the appropriate
penalty which was to have been assessed, was entirely proper and within Carrier's
authority.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
B
--4~
12~5P,
~~
psemarie Brasch - Administrative Assistant
a
Dated at Chicago, Illinois, this 23rd day of February,
1983.