Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9825
SECOND DIVISION Docket No. 9809
2-AT&SF-MA-'84
The Second Division~consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employer:
1. That Carrier suspended Machinist Apprentice Joe D. Nevarez (hereinafter
referred to as Claimant) from service on April 1, 1981, and subsequently
dismissed Claimant on April 22, 1981, as a result of investigation
held on April 10, 1981.
2. That Carrier be ordered to compensate Claimant for all lost wages
incurred from April 1, 1981, to date of restoration to Carrier service
and with all rights and fringe benefits restored in full.
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 employer 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.
Machinist Apprentice Joe D. Nevarez, the Claimant, was removed from the
Carrier's service effective April 22, 1981, for the following:
"...
insubordination, failure to follow instructions given to you
by Supervisor P. M. Schakel at approximately 10:45 a.m., April 1,
1981, violation of Rules 7, 14, 15 and second paragraph of Rules
16 and 17, Form 2626 Standard, 'General Rules for the Guidance of
Employer,' 1978 edition."
The incident in question involved the Claimant and Foreman P. M. Schakel.
Both testified to what transpired. The Foreman asserted that on April 1, 1981,
he observed the Claimant in the engine build-up area. It is uncontroverted
that this is not the Claimant's assigned working area. It also appears that the:
Claimant was passing through on his return from the restroom. By his own admission,
the Claimant stated he was in the area in question and had stopped to ask a fellow
employe for a ride home. The Foreman testified he told the Claimant to leave the
area, and he states the Claimant replied, "F--- you Paul." The Foreman said he
questioned that statement, and the Claimant replied, "You heard me, I said F--you Paul." The Foreman then asked the Claimant where he worked, and then he
testified the Claimant responded, "F--- you, I'm not telling you."
Form 1 Award No. 9825
Page 2 Docket No. 9809
2-AT&SF-MA '84
Despite acknowledging his presence in the engine build-up area, the Claimant
denied speaking to the Foreman or saying anything. The Organization argues the
Carrier did not meet its burden of proof and, in fact, went back to an old
disciplinary action involving the Claimant to justify its actions. As has happened
in many previous cases involving conflicting testimony, this Board is asked to
rule in favor of the Claimant. To do so, requires us to make a credibility
determination. This issue, however, is reserved for the Hearing Officer barring a
showing that the record is devoid of any reasonable basis for such a conclusion.
This is not our view of this matter, having benefit of a thorough review of the
transcript. To accept the Claimant's version of the incident would require
rejection of the Foreman's testimony. Herein, we find no basis or motive for the
Foreman to testify untruthfully. The finder of facts, not this Board, has the
opportunity to hear and observe the demeanor of both witnesses. Upholding the
Carrier's credibility determination, there is substantial record to support a
finding of guilt. When this finding is weighed against the penalty imposed along
with the Claimant's prior record, we find no reason to disturb the discipline.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ~"t `
Nancy J ~r - Executive Secretary
Dated at Chicago, Illinois, this 7th day of March, 1984.