Form 1 NATIONAL RAILRQkD ADJUSTMENT BOARD Award No. 9514
SECOND DIVISION Docket No.
9175
2-BN-FO-183
The Second Division consisted of the regular members and in
addition Referee Josef P. Sirefman
when award
was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. Under the current controlling Agreement, Mr. R. J. Mines, Laborer,
Vancouver, Washington, was unjustly dealt with when dismissed from
service of the Burlington Northern, Inc., effective November 21,
1979.
2. That, accordingly, the Burlington Northern, Inc. be ordered to reinstate
Mr. R. J. Mines to service with seniority rights, vacation rights and
all other benefits that are a condition of employment, unimpaired, with
compensation for all time lost plus 6°% annual interest, with reimbursement
of all losses sustained account loss of coverage under Health and Welfare
and Life Insurance Agreements during the time held out of service, and
the mark removed from his record.
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,
1931+.
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 R. J. Mines, a Laborer, was served with notice of investigation
to determine responsibility for an alleged insubordinatianand altercation with a
supervisor on October 21,
1979.
The investigation was held on October 26,
1979
and Claimant subsequently was dismissed from service effective November 21,
1979.
The raa~wd before this Board contains conflicting testimony as to the
occurrence between Claimant and the Supervisor, with the Carrier's witnesses
relating how the Claimant pushed the Supervisor aside to leave the room where
the Supervisor had charged Claimant with taking his notebook, and the Claimant
and his witnesses stating that it was the Supervisor who had shoved the Claimant.
Referee Larney noted in Second Division Award No.
7973
that "As an appellate
body, this Board is without jurisdiction to resolve conflicts in hearing testimony
or to determine credibility of witnesses." In an informed exposition Referee
Dana Eischen (Second Division Award No. 8280 observed:
Form 1
Page 2
Award No. 9514
Docket No.
9175
2-BN-FO-'83
"The descriptions of the event are so dramatically opposed that
it must be concluded that one or the other of these two sole
witnesses is not telling the truth. Carrier's hearing officer,
who assessed the discipline, obviously chose to believe the
foreman's version. From the transcript of the investigation we
cannot say that this conclusion was unsupported by the evidence
or patently unreasonable. While we may have resolved the
credibility conflict differently if we had the opportunity to
observe demeanor and other factors relating to testimonial
capacity, we do not have that opportunity under existing
appellate procedures in this industry. Rather a long tradition
of arbitral restraint in such cases has been firmly established
by hundreds of awards by this and other grievance arbitration
Boards operating under the Railway Labor Act. This approach is
not of our making but it is so universally accepted and utilized
by both parties that we cannot lightly cast it aside; notwithstanding its obvious limitations upon the pursuit of facts in a
particular case."
A review of the entire record before this Board establishes that there was
substantial evidence to sustain the Carrier's decision to discipline Claimant,
i.e., the testimony of the Supervisor involved, the testimony of another
supervisor who was in the office and who testified that he saw Claimant push the
Supervisor out of the way and the Claimant's statement that in grabbing hold of
the handle of the office door
"I:sueaa '4hxew
him off balance and that was
that." Given the seriousness of the infraction and the Claimant's prior record,
the Carrier's determination to dismiss Claimant was reasonable.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By /
e.--
~'x/~-_
marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 15th day of June, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division