Form 1
NATIONAL
RAILROAD ADJUSTMENT BOARD
Award No. 10379
SECOND
DIVISION Locket No.
10539
2-SP-EW-185
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:
( Southern Pacific Transportation Company (Western Lines)
Dispute:
Claim of
Employes:
1. That under
the current
Agreement, Mechanical Department Electrician Helper
P. J.
Lathrop was
unjustly treated when he
was dismissed from
service
on
March
15, 1982, following investigation for
alleged violation
of portions
of Rule 801
and Rule 802
of the General
Rules
and Regulations of
the
Southern Pacific
Transportation Company (Western Lines)
.
Said alleged
violation occurring on February 26, 1982, at approximately 7:20 a. m.
2. That accordingly,
the Southern Pacific
Transportation Company (Western
Lines) be
ordered to restore Electrician Helper P. J. Lathrop 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 loss of wages, including
interest at
the rate of six percent (6%) 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.
Following
proper
notice and investigation
hearing on
March
4, 1982, Electrician
Helper P
. J. Lathrop was discharged from
the
Carrier's service. Claimant was found
guilty of the charge set forth in
the notice
of hearing, of
which the pertinent
part states
the following:
"...your
alleged action
of being quarrelsome, or otherwise
vicious, in conducting yourself in a manner
which
would subject
the
Railroad to
criticism, and for your alleged act of
hostility, misconduct, affecting the interests of the
Company,
which is
sufficient cause for dismissal, on
February 26,
1982, at approximately 7:20 a.m., when you
allegedly
threatened bodily
harm to Supervisor W. J. Costa
and for your
alleged unauthorized action
of accosting Supervisor W. J. Costa, for which
occurrence you
are hereby
charged with
responsibility which may involve violation
of
those portions
of Rules 801 and 802 of the General Rules
and Regulations
...."
Form 1 Award No. 10379
Page 2 Locket No. 10539
2-SP-EW-185
The evidence consists of testimony by Claimant's Supervisor that he had
approached Claimant and another employee, and asked both of them to change their
jogging type tennis shoes for proper work boots. He also informed them that they
must go home for the boots if they were not with the employees on the property.
The Supervisor testified he approached the same employees 15 minutes later, and
again warned them they could not work with the shoes they were wearing. According
to the Supervisor, the Claimant followed him a short distance, at which point
Claimant grabbed his hair. The Claimant then threatened the Supervisor that if
disciplinary action were taken, Claimant would come to the Supervisor's house and
make him "pay for it". The Claimant proceeded to jerk the Supervisor's head by
pulling on his hair and again threatened to "get" him. The General Foreman did
testify that he was informed of the details of the incident by the assaulted
Supervisor shortly after the occurrence. Claimant flatly denies the charges, and
asserts that _if something had occurred between himself and the Supervisor, that
approximately 29 employees in the vicinity at the time would have seen the incident
and testified to that fact.
The only way that this Board could sustain the instant claim would be to make
a credibility determination by rejecting the Hearing Officer's acceptance of the
Supervisor's version and accepting that of the Claimant. As we stated in Second
Division Award 10376, the question of the credibility of witnesses and the weight
to be given their testimony is primarily one for determination by the Hearing
Officer, but this general rule should not be mechanically applied. The issue of
the credibility of a witness' testimony is not subject to reevaluation by this
Board in the instant case. While it is a fundamental principle that the Carrier
has the burden of proof in discipline cases, the Hearing officer should consider
the charged party's interest in the facts and outcome of the case, in particular
where the two witnesses to the incident directly contradict each other, and the
veracity of neither was impeached.
Claimant's reliance on the fact that although a large number of employees were
in the vicinity of the altercation, but none testified, adds nothing to the credibility
and weight of his testimony. There was no testimony on Claimant's behalf by any
witness that was so placed that if the event in question had occurred, he would
probably have noticed it so as to controvert the testimony by the Carrier's witness.
Further, this Board upon review of the entire record cannot say that Claimant's
testimony was not weighed as carefully as any other witness that appeared at the
investigation.
The Carrier established by substantial, credible evidence the serious charges
against Claimant. The Board finds that under the facts and circumstances of this
case, the penalty was neither arbitrary, unreasonable nor capricious.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
4~ -
Attest:
Nancy J, er - Executive Secretary
Dated at Chicago, Illinois, this 17th day of April 1985.