Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11011
SECOND DIVISION Docket No. 11076
2-MP-F&0-'86
The Second Division consisted of the regular members and in
addition Referee W. J. Peck when award was rendered.
(International Brotherhood of Firemen & Oilers
Parties to Dispute:
(Missouri Pacific Railroad Company

Dispute: Claim of Employes:

1. That under the current applicable Agreement, Laborer Ms. JoAnn Caron, was unjustly dismissed from the service of the Carrier on October 23, 1984.

2. That accordingly, the Missouri Pacific Railroad Company compensate Laborer, Ms. JoAnn Caron, at the pro rata rate of pay for each work day beginning October 23, 1985, until she is reinstated to service and in addition, receive all benefits accruing to any other employee in active service, including vacation rights and seniority unimpaired. Claim is also made for Laborer, Ms. JoAnn Caron, for herself and that she be made whole for pension benefits, including Railroad Retirement and Unemployment Insurance; and in addition to the money claimed herein, the Carrier shall pay Ms. Caron an additional sum of 187 per annum, compounded annually, on the anniversary date of said claim.

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 were given due notice of hearing thereon.

The Claimant in this case is a Laborer employed by the Carrier at Carrier's Diesel repair facility at Avondale, LA.

On date of September 27, 1984, the Carrier sent the following Notice to the Claimant:

e

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"Arrange to report to Trainmaster's office, 5245 ,
River Road, Avondale, La. 9:00 A.M. October 2,
1984, for formal investigation to develop facts and
place responsibility, if any, for your alleged
absenting yourself without proper authority at
approximately 10:30 A.M. September 27, 1984 while
you were working as Laborer Avondale Diesel Shop.
Arrange attendance of witnesses and/or representa
tives as provided for by your scheduled Agreement.
You are being withheld from service pending formal
investigation."

At the request of the Organization the Investigation was postponed and held on October 19, 1984.

On October 23, 1984 the Carrier sent the following Notice to the Claimant.

"You are hereby advised that your record has this date been assessed with dismissal for your violation of General Rule B of the Uniform Code of Safety Rules and paragraph #5 of Conditions of Employment in connection with your absenting yourself without proper authority at approximately 10:30 A.M., September 27, 1984 while working as Diesel Shop Laborer as was developed through investigation held October 18, 1984 Avondale, La."

The Transcript of the Investigation Page 10 shows the following:

"Hearing Officer questions the Claimant:

Q. In your conversation with Mr. Smith on the

morning of Sept. 27, 1984 did he instruct you in

the proper manner in which to lay off during a

shift.

A. Yes.

Q. For the record what were his instructions as

to the proper manner to lay off during -a shift.

A. He said I should lay off to J. C. my Gen.

Foreman and I replied J. C. is never there. He

said in that case I should lay off to someone at

the Rip Track.

Q. On Sept. 27, 1984 you stated that you went to

your car and left. Approx. what time was this.

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A. It was about 10:15 A.M.

Q. Prior to your departure did you contact Mr.

Calzada to indicate you were leaving.

A. No Sir.

Q. Did you contact Mr. Smith or Mr. Galbraith to

indicate you were leaving.

A. No sir.

Q. For the record prior to your departure on the

morning of Sept. 27, 1984 did you contact and

receive authority to leave from any officer of the

Missouri Pacific R. R.

A. No sir."

All this testimony by the Claimant shows that on September 27, 1984, the Claimant did leave the property without proper authority. The fact that she frankly and openly admitted it is also a strong indication that all of her testimony is also truthful and there is more. On Page 9 the Hearing Officer questions the Claimant:

"Q. Were you on duty as Laborer on the morning of

Sept. 27, 1984.

A. Yes

Q. Please state for the record all facts of which

you have knowledge concerning the caption of this

investigation.

A. During the morning J. C. told me to do Bum

sets, which I did. Then we talked about the over

time being allotted unfairly and Felton advised me

that MR. Smith wanted to speak with me. So I call

ed Mr. Smith to ask him if he had ever straightened

out why overtime was not being allotted on a fair

basis. He then told me that he was coming down to

the Diesel Shop to speak with me. After J. C.

returned from going to get coffee with Warren

Lanassa, after his usual morning coffee break, he

lined me up I guess it must have been around 8:45

am I SAY 9 A.M. TO wash an engine I then told him

that I had been asking for the proper equipment to

wash the engine for 6 weeks. So he said the boots

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and gloves that I needed were on order to due the
best I could without them. Which meant that I
would have to wash the engines in an unsafe manner
because it gets so slippery from the soap that the
boots being rubber do stay in one spot. About this
time Mr. Smith came, and he took me off the engine
I was not on the engine, but I was by the engine
with Juan. He started to talk to me about my
absenteeism and failure to report to a foreman on
Sept. 4, 1984 that I failed to report to a foreman
I told him that 2 weeks prior to us having this
talk I had seen him in the parking lot and said
that I would bring a doctor's certificate for being
off sick. He told me then, not on Sept. 27 but
when I had seen him in the parking lot that there
was no need for it unless the Trainmaster's wanted
it. So on Sept. 27, 1984 while we were having this
conversation I reminded him of this I also asked
him if it made any difference of my fear of J. C.
losing his temper and hitting me. His reply was I
lose my temper and scream in the faces of my sons,
but I would never hit them. I replied I was not
talking about his temper but J. C.'s. I ALSO told
him that it is utterly impossible to keep track of
J. C. where he is. I also told him on Sept. 4,
1984 that I layed off to J. C. and he failed to
tell anyone. That also on Sept. 4, 1984 I talked to
Pat Montalbano and I went straight to the doctor
and was intraveinously feed medicine. Mr. Smith
seemed to get very upset even though he kept asking
Felton Glapion and I what we had to say about the
condition at the Diesel Shop. At one point I
remember him shaking his finger in my face. Every
time Felton and I brought up the sexual harasse
ment the physical harassement and the emotional
harassement that both foremen had done to me during
my years of service his reply was I had nothing to
do with that. So I felt that I was very upset
Before Mr. Smith left, I think he was in the
office, I want to take my name off the overtime
board since it was a farce. Then I went into the
ladies room and tried to get myself together
because I was then crying and to the point of
hysteria. I then went to my car and left. I saw
no point in talking to J. C. or Mr. Smith because I
did not trust either one of them. There has been
times that I have laid off to Clay Gray and he had
forgotten to tell anyone. I have layed off to J.
C. I have left a copy of a doctors excuse and no
one got it, or told anyone that I laid off and Mr.
Smith did not want to be bothered with these
transgressions."
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Noteworthy in regards to this testimony is the fact that the Hearing Officer asks not a single question relative to these contentions of physical, emotional and sexual harassment, nor does he call in any witnesses to refute this testimony if it was not true.

Further on Page 10 Claimant's Representative questions her:

"Q. Through your previous experience with the

General Foreman and Master Mechanic Smith was this

the reason you did not report off the job on Sept.

27, 1984.

A. Yes sir.

Q. Are you taking any medicine because of the

harassement that you have suffered under the 2

foremens that you work for.

A. Yes sir."

Continuing on Page 11.

"Q. During your conversation with Master Mechanic

Smith did you inform him of the harassement you

were receiving from the Foreman that you work for.

A. Yes sir, I did.

Q. What was his reply to you.

A. He said that he could not do anything about

that.

Q. Did he instruct you on Sept. 27, 1984 who to

see about this condition.

A. No Sir, he did not."

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Farther down on Page 11 the Hearing Officer questions the Claimant.
"Q. You stated that you are taking medicine, is
this medicine a narcotic in nature.
A. No sir.
Q. Does use of this medicine result in drowziness
or effect alertness.
A. No sir."

Again it is noteworthy that the Hearing Officer asks not a single question relative to the Claimant's contention of physical, emotional and sexual harassment or her fear of being hit by one of these Foremen, and this follows through the entire case. Claimant's contentions had previously been reported to the Master Mechanic whose answer was, or at least never denied by Carrier, "I had nothing to do with that," or "I can't do anything about that." This certainly came out at the Investigation, with no denial, no rebuttal, never refuted. It was part of the Claim on the property which file went to three Carrier Officials including the Director of Labor Relations. Never once was there a denial that this actually happened. It was vividly portrayed by the Claimant at an Oral Hearing before the Board in Chicago, Illinois on June 11, 1986, a Hearing which this neutral attended, again from the Carrier no denial.

This Board does not resolve questions of credibility as to the testimony among witnesses, but in cases such as this where there is no denial whatsoever on the part of the other party, then there is nothing to resolve. Accordingly, the Claimant's testimony as to physical, emotional and sexual harassment and fear of being hit by one of these Foreman, must be accepted as a fact.

There is no question that the Claimant left the property without proper authority and that we can never condone. Accordingly and in view of the very unusual circumstances in this case we will reduce the penalty to a thirty day calendar suspension and otherwise sustain the Claim to the extent provided for by Schedule Rules or Law. We cannot sustain it for the interest as the Agreement does not provide for interest. If the Agreement says less deductions for outside earnings, the outside earnings must be deducted, if the Agreement does not so say then outside earnings should not be deducted.
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A W A R D

Claim sustained in accordance with the Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest:

Nancy J.440"er - Executive Secretary

Dated at Chicago, Illinois, this 1st day of October 1986.
,ROO