Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10491
SECOND DIVISION Docket No. 10165
2-CR-EW-185
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Consolidated Rail Corporation (Conrail)
Dispute: Claim of Employes:
1. That under the current Agreement, the Consolidated Rail Corporation
(Conrail) unjustly dismissed Electrician D. E. Hosie, from service
effective March 5, 1982.
2. That accordingly, the Consolidated Rail Corporation (Conrail) be
ordered to restore Electrician D. E. Hosie 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.
The Claimant has been employed by the Carrier as an Electrician at its
Locomotive facility located in Harrisburg, Pennsylvania. He has been in the
service of the Carrier for approximately 3 1/2 years. Following a trial that
was held on February 26, 1982 the Claimant was dismissed from service for
committing the following offenses: 1) Deliberately spilling oil on the
platform between No. 2 and No. 3 track, at the Harrisburg facility to create an
oil slick about 4:15 p.m. on October 24, 1981 for the purpose of injuring
himself and, 2) Purposely injuring himself by deliberately slipping on the oil
slick on October 24, 1981.
Form 1 Award
No.
10491
Page 2 Locket
No.
10165
2-CR-EW-185
The Company's case placed primary reliance upon the testimony of
Assistant Shop Manager R. Harville and Electrician J. C. Gerdy, the
Claimant's co-worker. Assistant Shop Manager Harville acknowledged that he
did not have personal knowledge of the events surrounding the Claimant's
injury; nor did he observe the Claimant slip on the oil slick on October 24,
1981. He concluded that the Claimant deliberately spilled oil to injure
himself based upon statements obtained from various employees which were
submitted to the Carrier before the trial that was held in the instant case.
Assistant Shop Manager Harville's testimony at the trial was based upon what
he derived from these statements. As he indicated:
"What I am reading here is what had happened from what I
got out of the statements. I'm not reading. It's in
the statements I'm reading in my own words the contents
of the statements."
Assistant Shop Manager Harville's testimony cannot be considered probative
or reliable evidence since it is based upon the statements of employees.
The Carrier also placed great weight on the statements and testimony of
Electrician Gerdy. The Carrier indicates that he "watched him (the Grievant]
deliberately step into the oil spill and fall in the direction of the pit."
Electrician Gerdy also said that he can "safely say without doubt that the
employee deliberately stepped into the oil." According to the Company, such
testimony, in effect, provides ample support in proving its case.
The function of this Board is to review the whole record and not only
the case presented by one party since other evidence may weaken or even
indisputably destroy that case. In this
connection, Electrician
Gerdy submitted three (3) statements to the Carrier. In this first statement which
was given on October 24, 1981 at 7:00 p.m. Electrician Gerdy indicated that
he did not have any "real knowledge" of how the oil spill occurred and that
he did not see the Claimant "slip, trip or fall" but he "saw what was probably
the bare hand ***" of the Claimant. At 8:19 p. m. on the same day, Electrician
Gerdy gave a second statement to the Carrier in which he indicated that the
earlier statement "was partially in error." He referred to the Claimant
being "despondent and dismayed" and that he told him on "a couple of occasions
*** he felt like just walking or jumping in front of an engine and ending it
a11." Electrician Gerdy then stated he "can safely say without any doubt
that the Claimant deliberately stepped into the oil." He went on to say that
before the Claimant slipped on the oil spill, he and the Claimant "went into
the cab" and the Claimant "said something like 'Oh, what the hell anyway' and
left to go in the direction of the oil spill. Asked whether the Claimant
Form 1 Award No. 10491
Page 3 Docket No. 10165
2 -CR- EW- ' 85
slipped "deliberately or could it be due to *** his being depressed that he
forgot the oil was there", Electrician Gerdy responded, "I don't really know.
Just the way he said it leaves me to believe he knowingly did it, but I don't
really know. [Emphasis added]. Thus, after indicating that he "can safely
say without doubt" that the Claimant deliberately stepped into the oil",
Electrician Gerdy indicated that he "did not really know" whether the
Claimant deliberately stepped into the oil or that due to his depression he
forgot about the oil spill. There is yet another statement that was given by
Gerdy to the Carrier on October 26, 1981. A t variance with his first statement when he said he "probably" saw the Claimant's "bare hand" as he fell, he
indicated that he "could see a foot--it Trent out from under him ***" in his
third statement.
In addition to the contradictory and untrustworthy statements given by
Electrician Gerdy to the Carrier there is his testimony at trial which must
be considered. Describing what he observed on October 24, Electrician Gerdy
testified that from the cab he was "in a position to see from his midsection
on up. But it was apparent I could see the results of what happened; his
body going toward the corner of the pit. ***" Thus, at trial, he did not see
the Claimant's "foot" which "went out from under him" as he related in his
third statement, since he "was in a position to see from his midsection on
up. " Moreover, he was only able to see "the results of what happened",
rather than how the fall occurred. The Claimant also called his second
statement given on October 24 as "Conscious and confused". Finally, when
asked to explain the discrepancy beteween his second statement in which he
said that he "watched him deliberately step in the oil" and his third
statement when he denied that he "actually" saw him step in the oil.
Electrician Gerdy replied as follows:
"Early that statement at 8:1 9 PM was one of emotion I guess
and disbelief. The question of whether he actually
stepped since he fell in that direction and I didn't
actually see him at the time, the reason I used the
word deliberately is because I was convinced at that
time that through these prior discussions of Doug [the
Claimant] and mine, I felt not only in his depressed
state of mind it actually happened."
Apart from the confusing nature of his testimony, Electrician Gerdy's
statements were based on "emotion", "disbelief", what he was convinced of,
based upon "prior discussions" with the Claimant, and the Claimant's
"depressed state of mind".
After carefully examining the entire record, the Board concludes that
the Carrier failed to carry its burden of proving that the Claimant deliberately spilled oil to injure himself. The evidence which the Carrier relied
upon to prove its case cannot be considered probative or reliable. Accordingly,
the claim is sustained.
Form 1 Award No. 10491
Page 4 D2ocket No. 10165
'No
A WAR D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy Over - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1985.