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Form 1 NATIONAL RAILROAD ADJUSTMEdT BOARD Award No. 9843
SECOND DIVISION Docket No. 9914
2-SP-SMW-'84
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( Sheet Metal Workers International Association
Parties to Dispute: (
( Southern Pacific Transportation Company
Dispute: Claim of Efiployes:
(1) That claimant Sheet Metal Worker C. G. Swain was arbitrarily and unjustly
suspended from service on July 31, 1981 and subsequently dismissed on August 26,
1981 without sufficient cause, in violation of Rule 39 of the current Motive Power
and Car Department Agreement.
(2) That claimant be restored to service with all seniority rights unimpaired.
(3) Compensate claimant for all time lost, in addition to an amount of 10%
per annum compounded annually on the anniversary date of claim.
(4) Make claimant whole for all vacation rights.
(S) Pay premiums for hospital, surgical and medical benefits for all time
claimant held out of service.
(6) Pay the premiums for Group Life Insurance for all time held out of service.
(7) Pay claimant for all holidays.
(8) Pay claimant for all sick pay.
(9) Pay claimant for all other contractual benefits for all time improperly
held out of service.
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.
Form 1 Award No. 9843
Page 2 Docket No. 9914
2-SP-SMW-184
This dispute came about as a result of the Claimant's report o f an injury
to his thumb on July 27, 1981. The Carrier, after a hearing, dismissed the Claimant
because it concluded that the thumb injury did not occur at the claimed time or
in the manner described by the Claimant.
The Organization raisers procedural questions with respect to the notice of
hearing and the fairness o f the
hearing. In
addition, it contends that the evidence
of record does not support the Carrier's charge.
We have reviesoed the record in its entirety and have found no procedural
deficiencies that deprived the Claimant of his rights. He was aware of the subject
of the investigation and was not prevented from presenting a full defense of his
position.
With respect to the merits, there are divergent accounts of the incident and
circumstances that led to this dispute. Carrier chose to place primary reliance
upon the testimony of two witnesses, one of whom saw the incident which the
Claimant states caused his injury, rather than that of the claimant. Therefore,
under all of the circumstances of record, we find no justification to depart from
the long-held principle o f the Division not to subsititute our judgement for
those who have had a direct opportunity to evaluate the credibility of the V1''
witnesses and their evidence.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest · i
Nancy .4016er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of April, 1984