Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9429
SECOND DIVISION Docket No.
9073
2-NWP-EW-'83
The Second Division consisted of the regular members and in
addition Referee
John B. LaRocco when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Northwestern Pacific Railroad Company
Dispute: Claim of Employes:
1. That under the current Agreement, Maintenance of Way Department
Electrician E. D. McConnell was unjustly treated when he was dismissed
from service on October 28,
1978,
for alleged violation of portions of
Rule 801 of the General Rules and Regulations of the Northwestern
Pacific Railroad Company, Redwood Empire Route, Willits, California.
Said alleged violation occurring on September
14, 1978.
2. That accordingly the Northwestern Pacific Railroad Company be ordered to:
(a) Restore Electrician E. D. McConnell to service with all rights
unimpaired including service and seniority, loss of wages, vacation,
payment of hospital, medical insurance, group disability insurance,
railroad retirement contributions, and loss of wages to include interest
at the rate of six percent per annum.
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, an electrician with ten years of service, was charged with violating
Carrier Rule 801. After an investigation held on October
19, 1978,
the Carrier
determined that Claimant had been both insubordinate and quarrelsome on September
14, 1978.
Claimant was dismissed from service on October 28,
1978.
On September
14, 1978,
Claimant was part of a large crew which was working
hard and long hours to repair fire damage on a mainline tunnel. During Claimant's
twelve hour shift, the Oregon Division Electrician arrived on the job site. At
that time, Claimant was busily engaged taping thermocouple wire to the airplane
cable. He was introduced to the Division Electrician. The Division Electrician
immediately ordered Claimant to alter the way he was taping the wire. Claimant
continued to perform the task as he had prior to the Division Electrician's
arrival.
Form I Award No. 9429
Page 2 _ Docket No.
9073
2-NWP-EW-183
At this point, the record contains several sharp conflicts between Claimant's
rendition of the events and the Division Electrician's testimony. First, Claimant
stated he did not realize that the Division Electrician was a supervisor and so
Claimant truly believed he did not have to follow the Division Electrician's
instructions. Other witnesses including a motorcar repairman testified that the
Division Electrician was wearing a white helmet (which was the distinctive symbol.
of a supervisor). Second, Claimant testified that the Division Electrician
forcibly seized Claimant's shirt lapels and yelled profanities at him. The Division
Electrician admitted that he touched Claimant, but said that he merely put his
hand on Claimant's shoulder in an attempt to calm him dote. Third, Claimant
asserted that he did not have sufficient tape to comply with the order. The
Division Electrician emphatically stated that Claimant did not raise this excuse
at the time of the incident. Fourth, according to the Division Electrician,
after Claimant disobeyed his order, Claimant became very belligerent and said he
did not care if he was taken out of service. Claimant admitted he was angry
and may have said he wanted to get away from the job, but denied the allegation
that he was quarrelsome.
It is not the province of this Board to resolve conflicts in testimony and
credibility disputes. Third Division Awards No. 22638 (Eischen) and No. 21556
(O'Brien). When confronted with direct conflicts in testimony, this Board must
leave credibility resolutions to the hearing officer. The Carrier could
reasonably decide to attach greater weight to the Division Electrician's testimony
as opposed to Claimant's version of the events. Our analysis is restricted to
reviewing the record and evaluating the evidence to ascertain if the Carrier
presented substantial probative evidence to justify a finding that Claimant
cacmmitted the charged offenses.
Claimant, by his own admission, refused to comply with the Division Electrician's
order. Since the supervisor was wearing a white hard hat, Claimant should have
complied. The Carrier could also rely on the Division Electrician's testimony
(as well as the testimony of other witnesses) to find that Claimant reacted in a
belligerent and hostile manner. Thus, Claimant violated Rule 801.
While we find substantial evidence demonstrating that Claimant committed
insubordination, this Board agrees with the Organization's contention that there
are mitigating circumstances which justify a reduction in the discipline.
Claimant had accumulated more than ten years of fine service. At the time of the:
incident, Claimant had been working very hard under adverse conditions. Tempers
were easily aroused. Both Claimant and his supervisor were responsible for
escalating a minor incident into a serious confrontation. The Division Electrician's
attempts to pacify Claimant (by putting his hand on Claimant's shoulder) actually
aggravated an already tense situation. Also, because the Div ision Electrician
decided to quickly remove Claimant from service, the record is unclear regarding
whether or not Claimant's insubordination lasted any more than a few moments.
See Second Division Award No. 8087 (Marx).
Therefore, we conclude a six-month suspension was the maximum penalty the
Carrier could reasonably have imposed in this case. Claimant shall be reinstated
with his seniority unimpaired and with back pay, but only for the period subsequent
to March
14, 1979.
Any outside earnings and unemployment compensation Claimant
F orm 1
Page 3
Award No. 9429
Docket No. 9073
2-NWP-EW-183
received (after March 14, 1979) will be deducted from the back pay award.
Claimant's request for interest and other retroactive benefits is denied. The
Carrier has argued that its back pay liability should terminate when it offered.
to reinstate Claimant in April, 1980. However the offer was on a leniency basis,
which this Board cannot review. In addition, the Carrier apparently withdrew
the offer sometime thereafter. Thus, in this particular case, the Carrier's back
pay liability was not limited.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
1~s1~.
~..//
semarie Brasch - Administrative Assistant
Dat at Chicago, Illinois, this 30th day of March, 1983.