Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.10211
SECOND DIVISION Award No. 10301
2-NRPC-EW-'85
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation (Amtrak)
Dispute: Claim of Employes:
1. That under the current Agreement the National Railroad Passenger
Corporation (Amtrak) unjustly dismissed Electrician Tyrone Rogers
from service effective September 10, 1982.
2. That accordingly, the National Railroad Passenger Corporation (Amtrak)
be ordered to restore Electrician Tyrone Rogers to service with seniority
unimpaired and with all pay due him from the first day he was held
out of service until the day he is returned to service, at the applicable
Electrician's rate of pay for each day he has been improperly held
from service; and with all benefits due him under the group hospital
and life insurance policies for the aforementioned period; and all
railroad retirement benefits due him, including unemployment and
sickness benefits for the aforementioned period; and all vacation and
holiday benefits due him under the current vacation and holiday
agreements for the aforementioned period; and all other benefits that
would normally have accrued to him had he been,working in the aforementioned
period in order to make him whole; and expunge-his record.
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 was charged with violation of Carrier's Rules of Conduct "I",
"J", "K" and "L" stemming from a charge of absence from his assigned duties,
and his allegedly insubordinate, belligerent and threatening behavior when
questioned by his Supervisor. The Organization argues that Claimant's dismissal
from service was improper due to denial of a fair and impartial hearing, failure
by the hearing officer to allow Claimant to have representation, improper use
of Claimant's prior record, and failure of Carrier to meet its burden of proof.
The Carrier contends Claimant received a fair and impartial hearing, his guilt
of the charges was clearly established, and the discipline assessed was proper
in light of the offenses and Claimant's record.
Form 1
Page 2
Award No. 10211
Docket No. 10301
2-NRPC-EW-185
A complete review of the record does not support the Organization's contentions.
Claimant was allowed Union representation throughout the proceeding. While it
is true that Claimant's legal counsel who was present during a portion of the
hearing was not allowed to actively participate, direct and cross-examination
was permitted of all witnesses by Claimant and his representative. The Organization's
representative was allotted full opportunity to actively participate in all
phases of the proceedings. Inquiry into Claimant's prior record was handled in
a proper manner, and there is no evidence that it was in any way prejudicial to
the determination of guilt upon the aforementioned charges.
In addition, the admission of an oral statement by Claimant's physician was
proper. The statement was both probative and relevant to the Claimant's physical
condition, and constituted an admission by Claimant as he authorized a statement
on his.illness by his personal physician.
The testimony contained in the record established by sufficient, credible
evidence that Claimant was guilty of the charges. Carrier's Foreman testified
that Claimant was rude, used profane language and threatened physical harm when
questioned regarding his absence from duty for almost two (2) hours. Two other
witnesses corroborated the charging officer's testimony regarding Claimant's
profane and threatening behavior. One of Claimant's witnesses did testify that
there was a verbal altercation of sufficient proportions to necessitate placement
of his person between Claimant and the charging Foreman.
Claimant defends his actions on the basis that he was in diabetic shock at
the time of the.incideDt. In addition, this medical condition allegedly prevented
Claimant from any clear recall of the events in question. The Board finds the
v
record contains credible testimony that the charging officer was aware of Claimant's
diabetic condition, and that Claimant's medical problems were real. It is not
unreasonable to assume based on the medical evidence, that after a diabetic
attack such as appears to have occurred to Claimant prior to the altercation,
a loss of memory for a period of thirty (30).minutes may be experienced. The
record shows Claimant's alleged illness occurred in the period from 3:00 - 7:00
p. m., and the incident took place at 10:50 p.m. Further, Claimant has no medical
history of violence as the result of a diabetic attack. The defense of diabetes
to the instant charges must fail.
This Board considers, however, that under all the circumstances of this
claim, the discipline has served its purpose. Therefore, Claimant shall be
reinstated to service with seniority unimpaired, but without back pay.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ~~
490
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 16th day of January 1985.