Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9702
SECOND DIVISION Docket No. 9120
2-SCL-SM-'83
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
1. Restore the claimant to service with all seniority rights unimpaired.
2. Compensate claimant for all time lost in addition to an amount of 6%
per annum compounded annually on the anniversary date of claim.
3. Make claimant whole for all vacation rights.
4. Reimburse the claimant and/or his dependents for all medical and dental
expenses incurred while employee was improperly held out of service.
5. Pay to the claimant's estate whatever benefits the claimant has accrued
with regards to life insurance for all time claimant was improperly
held out of service.
6. Pay claimant for all contractual holidays.
7. Pay claimant for all jury duty and for all other contractual benefits.
8. Pay claimant for all contractual sick pay.
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 employes 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, L. E. McCauley, received notice dated October 16, 1979 to attend
investigation on
October 23, 1979. He was charged with violation of that part
of Rule 12 of Carrier's Mechanical Department Rules and Regulations which reads,
in pertinent part: "Vicious, or uncivil conduct, insubordination
... will
subject
the offender to summary dismissal". Claimant was also advised by this same
notice that his personal record would be reviewed at the conclusion of the investigate
On December 14, 1979 Claimant was advised that he had been found guilty as charged
and that he was discharged from Carrier's service.
Form 1
Page 2
Award No. 9702
Locket No. 9120
2-SCL-SM-183 1400
A review of the record shows sufficient substantial evidence to warrant
conclusion that Claimant is guilty as charged. Substantial evidence has been
defined as such "relevant evidence as a reasonable mind might accept as adequate
to support a conclusion". Both Car Foreman Spivey and Machinist Hart testified
at the hearing that Claimant directed verbal threats at Foreman Spivey. Since
Claimant categorically denies this the Board is confronted with direct conflict
of evidence. The Board has ruled in numerous past Awards, however, that it will
not resolve conflicts of evidence nor credibility issues if there is substantial
evidence in the record which supports the action of the Carrier (2nd Division
Awards 1809, 6195 and 6372 inter alia).
The only issue to be resolved by this Board, therefore, is whether the
penalty imposed by the Carrier was reasonable. This Board has underlined in
prior Awards that the role of discipline is not only punitive but that it should
also provide corrective and training measures for employes (2nd Division Award
6485; Third Division Awards 5372 and 19037 inter alia). The Carrier may properly
weigh a Claimants work history to determine the quantum of discipline (Second
Division Awards 6632 and 8527). A review of Claimants work record shows a
number of letters of reprimand during his five (5) year tenure with the carrier,
although he had never engaged in behavior reprehensible enough to merit a suspension
prior to the incident under consideration in the instant case. The Board does
not find it unreasonable, therefore, by way of the application of the principle
of progressive discipline, to direct reinstatement of the Claimant on a last
chance basis to his prior position with seniority and other rights unimpaired
but without back pay or other monetary benefits for tune lost while out of service.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
w4ex-~
Nancy De - Executive Secretary
Dated at Chicago, Illinois, this 26th day of October 1983.
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