Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9968
SECOND DIVISION Docket No. 1001:3
2-SCL-SMW-184
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
No. 1: Restore the claimant (Mr. Albano) to service with all seniority
rights.
No. 2: Compensate claimant for all time lost in addition to an amount of
10°% per annum compounded annually on the anniversary date of
claim.
No. 3: Make claimant whole for all vacation rights.
No. 4: Re-imburse the claimant and/or his dependents for all medical and
dental expenses incurred while employee was improperly held out
of service.
No. 5: Pay to the claimant's estate whatever benefits the claimant has
accrued with regards to life insurance for all time claimant wars
improperly held out of service.
No. 6: Pay claimant for all contractual holidays.
No. 7: Pay claimant for all contractual sick pay.
No. 8: Pay claimant for all jury duty and all other contractual benefits.
No. 9: Pay claimant for all overtime lost during discipline.
FINDINGS:
The Second Division o f 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, at the time of the occurrence giving rise to the claim herein, was
employed by the Carrier as a Sheet Metal Worker in the Locomotive Repair Shop
at Tampa, Florida. Claimant had about one and one-half years of service.
Form 1 Award No. 9968
Page 2 Docket No. 1001.3
2-SCL-SMW-' 84
According to the Carrier, at about 8:20 A.M., Ju1°y 22, 1981, Assistant
Department Foreman J. L. Ingrams instructed claimant to go to units 4762 and
4632 and put MU (multiple unit) and brake pipe hoses on those units. Claimant did
not promptly perform the work as instructed, and was observed at 8:50 A.M. and
9:05 A.M., at a location described "at ramp of Station 7." At that time it was
noticed by the Assistant Department Foreman that the hoses .had not been placed
on the units as previously instructed. Claimant stated that he was on his break.
The foreman then instructed the claimant to get up and "do the job now." At
9:30 A.M. the foreman again noticed that the hoses had not been applied and that
the claimant was not on the job. At 9:58 A.M. claimant was observed coming from the
enginehouse and when asked by the foreman where he had been, claimant is reported
to have replied in a vulgar and threatening manner. On the same date, July 22,
1981, claimant was notified to attend
investigation:
"You are hereby directed to appear for a formal investigation which
will be corducted in the office of the Shop Superintendent at Tampa,
Florida, at 9:30 A.M., August 18, 1981, to develop the facts and place
your responsibility, i f any, in connection with failing to work
diligently during shop hours, wilful neglecting your assignment and
uncivil conduct toward your supervisor on the morning of July 22, 1981,
in the Uceta Heavy Locomotive Repair Shop.
p You are charged with violation of that Part of Rule 1 which reads
'every employee is expected to yield a willing and cheerful obedience
thereto. To enter or remain in the service is an assurance of willingness
to obey the rules and to work diligently during shop hours.' and that part
of Rule 12 which reads 'uncivil conduct... wilful neglect,' of the Rules
and Regulations of the Mechanical Department o f the Seaboard Coast Line
Railroad Company.
Your personal record will also be reviewed at this time.
You may have representation if you so desire in accordance with the
agreement under which you are employed, and you may arrange to have
present any witnesses who have knowledge of this matter."
The charge was over the signature of the General Foreman.
Rules 1 and 12 of Rules and Regulations of the Mechanical Department,
referred to in the notice of July 22, 1981, read in part:
"Rul e 1
The rules and regulations as well as general and special orders issued
from time to time are designed to insure the proper care o f the
Company's property and the interest of the Company and its employees.
Every employee is expected to yield a willing and cheerful obedience
thereto. To enter or remain in the service i s an assurance of willingne.
to obey the rules and to work diligently during shop hours. Spoiling
or wasting of material will be considered sufficient cause for discipline.
Form 1 Award No. 9968
Page 3 Docket No. 1001.3
2-SCL-SMW-' 84
"Rule 12.
Disloyalty, dishonesty, desertion, intemperance, immorality, vicious
or uncivil conduct, insubordination, incompetency, wilful neglect,
inexcusable violation of rules resulting in endangering, damaging or
destroying life or property, making false statements or concealing facts
concerning matters under investigation will subject the offender to
summary dismissal.
11
The investigation was postponed and conducted on August 25, 1981. A copy of
the transcript o f the investigation has been made a part of the record. On
October 9, 1981, claimant was assessed discipline of fifteen working days beginning
Nbnday, October 12, 1981, and continuing through October 30, 1981.
In the investigation claimant's representatives objected to claimant being
charged with violation of Rules 1 and 12 of Rules and Regulations of the Mechanical
Department as such rules were not negotiated rules. It is well settled that the
Carrier may promulgate rules for the conduct of employes unless they contravene
the terms of a collective bargaining Agreement. See Award No. 7161 and other
awards cited therein.
The Carrier contends that the'task of installing the hoses as instructed,
should have taken no more than twenty minutes. In the investigation the claimant
stated the "the job was done before, 11. "
The investigation contains substantial evidence that claimant did not diligently
perform his duties on the morning of July 22, 1981. There was a direct conflict
between the testimony of the Assistant Department Foreman and claimant
as to the response claimant made to the foreman at about 9:58 A.M. It is well
settled that this Board does not weigh evidence, attempt to resolve conflicts
therein, or pass upon the credibility of witnesses. The Board may not properly
reverse the Carrier's determination because of conflicts in testimony.
On the record before us, there is no proper basis for the Board to interfere
with the discipline imposed by the Carrier.
A W A R D
C1a4m denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
100
Nancy J e~r - Executive Secretary
Dated at Chicago, Illinois, this 13th day of June, 1984