Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11184
SECOND DIVISION Docket No. 11238
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 & North Western Transportation Company violated
the controlling agreement dated July 1, 1921, as amended, specifically Rule 35
when they suspended Electrician Richard Pluta for fifteen (15) days, when the
evidence in the investigation was not conclusive.
2. That the Chicago & North Western Transportation Company be
ordered to dismiss the discipline and make the Claimant whole for all wages,
fringe benefits, railroad retirement, insurance, vacation or any other
benefits lost because of this untimely disciplinary action.
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 Ad'~ustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At the time of the occurrence giving rise to the dispute herein,
Claimant was employed as an Electrician at Carrier's Chicago, Illinois,
California Avenue Coach Yard. On February 19, 1985, Claimant was instructed
to attend a formal Investigation on the charge:
"Your responsibility for your failure to follow the
Federal Blue Flag law and Rule 26 of the CNW Transportation General Regulations and Safety Rules when
on February 18, 1985, at approximately 8:32 A.M. you
were observed working between Engine 164 and Car
7817 on train 616 without a blue flag or engine flag."
Form 1 Award No. 11184
Page 2 Docket No. 11238
2-C&NW-EW-'87
The Investigation was scheduled for 10:00 A.M., February 28, 1985.
The Investigation was convened at: the time scheduled, at which time the
Claimant stated that he would like to have certain witnesses present, members
of the train crew. At the request of the Organization, the Investigation was
postponed and rescheduled for 2:00 P.M., March 8, 1985, for the Organization
to obtain witnesses that it considered necessary.
At the rescheduled Investigation on March 8, 1985, Claimant and his
representative were present, but without the additional witnesses, and
Claimant then stated that he was ready to proceed without the additional
witnesses. Following the Investigation completed on March 8, 1985, Claimant
was notified that he was assessed discipline of fifteen days suspension.
We have carefully reviewed the Transcript of the Investigation
completed on March 8, 1985, and find that substantial evidence was presented
by the Carrier in support of the charge against Claimant. The "substantial
evidence" rule was set forth by the Supreme Court of the United States as
follows:
"Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support
a conclusion."
(Consol. Ed. C0. vs. Labor Board 305 U.S. 197, 229).
(Second Division Award No. 6419.)
While there were conflicts between the testimony of Claimant and
supervisory personnel in the Investigation, this Board does not weigh
evidence, attempt to resolve conflicts therein, or pass upon the credibility
of witnesses. Conflicts in testimony do not warrant overturning the Carrier's
action.
We note that in the handling of the dispute on the property, the
General Chairman submitted to Carrier's highest designated appeals officer a
statement dated May 7, 1986, signed by six persons, who he identified as
employes of Carrier's California Avenue Car Facility. In discipline cases the
parties to the dispute and the Board are each restricted to the evidence
introduced at the Investigation, and the record may not properly be added to
following the close of the Investigation or Hearing. (Third Division Awards
Nos. 25907 and 24356.)
There is no proper basis for the Board to interfere with the
discipline imposed by the Carrier.
Form 1 Award No. 11184
Page 3 Docket No. 11238
2-C&NW-EW-'87
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest _
Nancy r - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1987.