Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10629
SECOND DIVISION Docket No. 9212
2-CR-MA-185
The Second Division consisted of the regular members and in
addition Referee Thomas A. Bender when award was rendered.
(International Association of Machinists and Aerospace
(Workers, AFL-CIO
Parties to Disptue:
(Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
Allen Elias to service and compensate him for all pay lost up to time of
restoration to service at the prevailing Machinist rate of pay.
2. That Machinist Allen Elias be compensated for all insurance benefits,
vacation benefits, holiday benefits, and any other benefits that may have
accrued and were lost during this period, in accordance with Rule 7-A-1 (e) of
the controlling Agreement which was effective May 1, 1979.
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.
By decision of this Division, Award 9231, July 22, 1982 the Claimant's
termination by Consolidated Rail Corporation was affirmed. Following rejection
of his case the Claimant filed an appeal in the Federal District Court,
Northern District of Ohio.
The Claimant's prayer for relief sought a remand to the Second Division
for reconsideration. Before the matter could be heard or decided, Representatives of Consolidated Rail Corporation and the Claimant agreed to have the
Court Remand the case to the Second Division because of an alleged failure to
notify the Claimant of the Hearing before this Board.
Form 1
Page 2
Award No. 10629
Docket No. 9212
2-CR-MA-185
These provisions of this Court's Order were fully complied with on August
30, 1985.
On August 30, 1985, the Claimant, Allen Elias, personally and by counsel
appeared before the Division. Mr. Elias's counsel carefully, thoroughly and
thoughtfully reviewed and reargued the original case. Pursuant to the
provisions of the Railway Labor Act and the Rules of this Board no additional
evidence was presented, the Claimant being confined to the record made on the
Carrier's property. While such a procedure may seem foreign to some advocates,
it is a system which has well served the Railroad industry for many years and
is one universally understood by Carriers and Employee Representatives.
The original Award in Mr. Elias' case carefully examined the following
matters:
1. Insubordination
2. Use of profane language to a Supervisor
3. Threatening a Supervisor with bodily harm
4. Vagueness of the Notice of Investigation
At the rehearing, the Claimant's counsel pointed out some conflicts in the
investigation record. Thus, this Board carefully reviewed not only the
original Award but the underlying record as well. Notwithstanding the points
raised, we are satisfied that the record contains substantial evidence which
supports the conclusions contained in Award 9231; and in turn, the discipline
meted out by the Carrier.
Our original actions in this matter were predicated, inter alia, on Second
Division Award 6456 which provides in relevant part:
"There was substantial evidence to support the hearing
officer's conclusion. Many prior awards have established
that the policy of this Board is to leave undisturbed
a decision based on substantial evidence produced at a
hearing which has been fairly conducted after proper
notice."
Referee Bergman's words represent only one such statement of a long standing, well recognized precept.
A W A R D
Attest
Second Division Award 9231 is affirmed.
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
N~ ver - Executive Secretary
Dated at Chicago, Illinois, this 30th day of October 1985.