Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9560
SECOND DIVISION Docket No. 9+51
2-SPT-EW-183
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician N. P.
Kalfountzo:a was unjustly treated when he was dismissed from service
on February 28, 1980, following investigation for alleged violation of
portions of Rule 810 of the General Rules and Regulations of the Southern
Pacific Transportation Company (Pacific Lines). Said alleged violation
occurring on February
5,
1980, at approximately 5:30 p.m. to 6:00 p.m.
2. That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Restore Electrician N. P. Kalfountzos to service with all rights
unimpaired including service and seniority, loss of wages,
vacation, payment of hospital and medical insurance, group
disability insurance, railroad retirement contributions, and
loss of wages including interst at the rate of six percent (6°%0)
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.
The Claimant here, Electrician N. P. Kalfountzos, was dismissed from service
on February 28, 1980, following an investigation involving violation of Rule 810,
which states:
"Employees must report for duty at the prescribed time and
place, remain at their post of duty, and devote themselves
exclusively to their duties during their tour of duty. They
must not absent themselves from their employment without
proper authority."
The Organization's position is the dismissal was unjust because the Carrier's
actions were not supported by the record. It is not a violation of Rule 810
F orm 1
Page 2
Award No. 9560
Docket No.
9451
2-SPr-Ew-'83
to leave your post and go to the bathroom nor is it necessary to obtain such
permission. The Organization asserts the Claimant simply was not guilty of
charges.
The record discloses sharply divergent testimony. Three Carrier witnesses
place the Claimant in a locker room sLtting on a toilet reading a newspaper with
his trousers in an up position. The Claimant denied any remembrance of reading
a newspaper and asserted he was actually using the toilet facilities. As
repeatedly stated by this Board, it is not our function to resolve conflicts
in testimony. The credibility of witnesses and the weight given to their
testimonies is reserved to the trier of facts. Herein, this Board's review
results in a finding there was substantial evidence to support the Carrier's
action. There is no question concerning the conduct at the hearing, which
clearly provided the Claimant with every opportunity to present his position.
There being no factual showing of arbitrary or capricious action, this Board
sustains the Carrier's action.
the
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad
Adjustment Board
NAT IQd AZ RA IIROAD ADJUSTMENT BOARD
By Order 'of Second Division
By e./ A
osemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 13th day of July, 1983.