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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10063
SECOND DIVISION Locket No. 10076
2-SPT-EW-184
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein 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 Electricians
R. V. Abano and J. Alde were unjustly treated when they were dismissed
from service on August 11, 1981, following formal investigation for
alleged violation of portions of Rules 801 and 802 of the General
Rules and Regulations of the Southern Pacific Transportation Company
(Pacific Lines). Said alleged violations occurring on June 17, 1981
and June 30, 1981.
2. That accordingly, the Southern Pacific Transportation Company (Pacific:
Lines) be ordered to:
(a) Restore Electricians R. V. Abano and J. A1de 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 the
loss of wages to include interest at the rate of sixteen percent
(16%) 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 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.
Claimants were employed as Electricians, and, at the time of the occurrence
giving rise to this dispute, had been in the Carrier's service for less than
three years. Following an investigation conducted on July 8, 1981, Claimants
were dismissed from the service of the Carrier on August 11, 1981. Claimants
AZde and Abano were charged with entering into an altercation with a supervisor
in violation of Rules 801 and 802, which state in pertinent part:
Form 1 Award
No. 10063
Page 2 Locket
No. 10076
2-SPT-EW-'84
"Rule 801 - 'Employees will not be retained in the service who
are... dishonest ...quarrelsome or otherwise vicious...'
Rule 802 - '...Employees must not enter into altercations while on
duty."'
Claimant Abano was additionally charged with falsifying time for June
17,
1981 on his semi-monthly timecard in violation of the foregoing Rule 801.
It is the position of the Carrier that substantial evidence adduced at a
fair and impartial hearing conclusively proved that Claimants on June 30, 1981,
were involved in an altercation with their foreman, E. J. Fitkowski, in which
Claimant Abano punched the foreman in the face while Claimant A1de held him.
Additionally, the Carrier maintains that under all the facts and circumstances
of this matter, dismissal was clearly justified.
The Organization contended that sufficient evidence was not adduced to
prove the charges; that the Carrier's sole witness to the occurrence charged
was unsupported in his testimony by any other witness, and presented less than
credible testimony. The Organization asks that this Board consider Employee's
Exhibit
"H",
a petition signed by numerous employees attesting to the unsafe
treatment and harrassment experienced at the hands of Supervisor Fitkowski as
further evidence of his lack of credibility in the present case. Finally it is
contended by the organization that the discipline administered herein was
discriminatory, excessive, arbitrary, capricious and not supported by substantial
evidence.
With respect to the credibility of Supervisor Fitkowski's testimony, the
Board first finds that the petition submitted by the organization as Exhibit
"H"
was properly excluded as irrelevant to the question of whether an altercation
took place as charged. Similarly, to the extent that the Organization attempted
to introduce evidence concerning prior grievances directed against Supervisor
Fitkowski; their relevance is limited to the propensity of the two men and
their foreman to act as they did and does not constitute a sufficient basis for
overturning the
credibility determinations of the hearing officer.
After careful consideration of the evidence on the record, the Board finds
that the record contains substantial proof supporting the allegations that
Claimants entered into an altercation with Supervisor Fitkowski in his office
on June 30, 1981. It is undisputed that the Claimants were in the office alone
with the supervisor, that an argument concerning timecards took place, and that
Supervisor Fitkowski sustained an injury while in the presence of the Claimants.
Carrier witness Foreman Moreno corroborated the testimony of Supervisor Fitkowski
that some form of altercation took place in Mr. Fitkowski's office. General
Foreman LeBlanc testified that Supervisor Fitkowski related the incident to him
immediately afterward, and LeBlanc observed that Fitkowski had indeed been
injured. Witnesses presented on behalf of the Claimant observed or overheard
only bits and pieces of the incident, and their testimony failed to explain how
Supervisor Fitkowski sustained an injury during a meeting with the Claimants.
Given this state of the record, there was indeed probative evidence from which
Form 1 Award No. 10063
Page 3 Locket No. 10076
2-SPT-EW-'84
the hearing officer could legitimately conclude that Supervisor Fitkowski's
version of the events was closer to the truth than Claimants' self-serving
denials. In our judgment there is no showing of unreasonableness, bias, prejudice
or predetermination shown on this record to impeach the determination of the
hearing officer that events transpired as essentially described by the supervisor.
That being the case, there is substantial evidence to support findings that
Claimants attacked their supervisor in violation of Rules 801 and 802. Such
conduct clearly cannot be condoned in the workplace, and we find no grounds
upon which we should substitute our judgment for Carrier's relative to the
penalty imposed. The record is adequate to support the penalty assessed for
each Claimant.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: -
Nancy J ver - Executive Secretary
Dated at Chicago, Illinois, this 5th day of September, 1984.