Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11182
SECOND DIVISION Docket No. 11234
2-C&NW-EW-'87
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. That the Chicago and Northwestern Transportation Company violated
the current agreement when on November 13, 1984 Electrician Brian Lewis was
dismissed from service without being provided a fair and impartial hearing.
2. That the Chicago and Northwestern Transportation Company violated
the current agreement when on November 13, 1984 Electrician Brian Lewis was
unjustly dismissed from service of the Carrier account of "your responsibility
in connection with bringing false information into the investigation held on
September 18, 1984 at Chicago, Illinois."
3. That the Chicago and Northwestern Transportation Company reinstate Claimant Brian Lewis to service with seniority rights unimpaired and to
make him whole for all lost wages, vacation, insurance, railroad retirement
rights and benefits lost because of the Carrier's unjust action beginning
November 13, 1984 and all other losses to be accompanied with interest on the
money amount at the rate of 14%.
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 employed by the Carrier as an Electrician in the
Engineering Department of Carrier's Suburban Division. On September 18, 1984,
Claimant attended a formal Investigation concerning his alleged violation of
Carrier's Safety Rules when performing service without safety glasses on
August 29, 1984. In that case Claimant was assessed discipline of sixty days
actual suspension, later reduced to thirty-five days actual suspension. Claim
for removal of that discipline was progressed to this Board and disposed of by
Award No. 11116 of this Division.
Form 1
Page 2
Award No. 11182
Docket No. 11234
2-C&NW-EW-'87
On October 1, 1984 Claimant was notified to attend another
Investigation, scheduled for 10:;30 A.M., October 5, 1984, on the charge:
"Your responsibility in connection with bringing
false information into the investigation held on
September 18, 1984."
After a number of postponements, Investigation on the charge of
October 1, 1984, was conducted on November 5, 1984, following which Claimant
was dismissed from service on November 13, 1984. The record shows that
Claimant was restored to service without pay for time lost on March 25, 1986.
A copy of the Transcript: of the Investigation conducted on November
5, 1984, has been made a part of the record. Numerous objections were raised
by Claimant's representative prior to and during the Investigation of November
5, 1984. We have considered the objections raised and find none of them or
all of them of sufficient significance to invalidate the proceedings. The
charge against the Claimant was sufficiently precise to enable the Claimant
and his representative to prepare a defense. Although the Investigation may
not have been conducted in an exemplary manner, Claimant was not denied any
substantive rights. The offer of the Hearing Officer to recess the Investigation until other witnesses could be present was reasonable.
We can agree that the Carrier has the right to expect truthful
testimony from employes during Investigation proceedings. However, conflicts
in testimony in discipline cases are not unusual. This Board has generally
held that it will not weigh evidence, attempt to resolve conflicts therein, or
pass upon the credibility of witnesses. Such functions are reserved to the
Hearing Officer. This principle was recognized in Award No. 11116. Each case
of the nature here involved must be decided on the record developed. We
consider the facts in the present: case to be entirely different from those
involved in Award No. 31 of Special Board of Adjustment No. 924, and apparently different from the facts involved in Award No. 6 of Public Law Board No.
2006.
In the present case, the Board finds that discipline was warranted;
however, the time that Claimant was withheld from service, from November 13,
1984, to March 25, 1986, constituted excessive discipline. We will award that
Claimant be paid for all time lost in excess of ninety days, or from February
13, 1985, to March 25, 1986, with compensation computed strictly in accordance
with the provisions of the applicable Agreement.
Form 1 Award No. 11182
Page 3 Docket No. 11234
2-C&NW-EW-'87
A W A R D
Claim sustained in accordance with Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _.
0
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1987.