Form 1 NATIONAL RikILROAD ADJUSTMENT BOARD Award No. 11201
SECOND DIVISION Docket No. 11235
2-SSR-MA-187
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
(Seaboard System Railroad
Dispute: Claim of Employes:
1. That the Seaboard System Railroad violated Rule 30, but not
limited thereto, of the controlling Agreement when it unjustly dismissed
Machinist Victor Bauza from service effective September 24, 1985.
2. That accordingly, the Seaboard System Railroad be ordered to
reinstate Machinist Bauza to service with seniority rights unimpaired and
reimburse him for all pay and benefits lost (made whole).
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 ,rune 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 record shows that Claimant was employed by the Carrier as a
Machinist at Hialeah, Florida, on November 13, 1974, and worked as such until
furloughed in a force reduction on May 28, 1982. He was in furloughed status
at the time of the occurrence giving rise to the dispute herein; however,
while in furloughed status he retained his seniority as a Machinist with
rights to recall to service.
On April 27, 1964, about 2:25 A.M., Claimant was involved in an
incident at Hialeah resulting in a Police Officer being wounded, and Claimant
being incarcerated on charges of attempted second degree murder, shooting into
an occupied building and unlawful possession of a fire arm while engaged in a
criminal offense.
On May 9, 1984, the following notice was issued to Claimant, which
notice was delivered to him at Metro-Dade Jail:
Form 1
Page 2
Award No. 11201
Docket No. 11235
2-SSR-MA-187
"You are directed to attend investigation
scheduled to be held in office of Assistant
Master Mechanic, Hialeah, Florida, at 1:30 PM,
Friday, May 18, 1984, to develop facts and
determine responsibility, if any, in connection
with possible violation of Rule 3 of the Seaboard
System Railroad Rules & Regulations of the
Mechanical Department, and conduct unbecoming an
employee of the Seaboard System Railroad.
These possible violations having occurred on
April 27, 1984, when you were arrested and
charged in connection with the shooting and
serious injury of a Hialeah police officer.
You may have representation if you so desire in
accordance with the agreement under which you are
employed, and you may arrange to have present any
witnesses who have knowledge of the matter under
investigation.
At the conclusion of the investigation your
personal record file will be reviewed."
Several requests were made for postponement of the scheduled
Investigation, which requests were granted. On April 30, 1985, Claimant was
notified in part:
"Because the charges against you have not been
disposed of by the appropriate State Court, the
investigation is being postponed until such time
as the charges are disposed of in the handling
court."
The Investigation was subsequently held in absentia on August 14,
1985, due to Claimant's continued incarceration. Claimant was represented in
the Investigation by Local Chairman of the Organization.
Testimony was adduced in the Investigation that Claimant had been
found guilty in the Court proceedings for three felony counts for which he had
been charged by the Civil authorities, with sentencing scheduled for August
21, 1985.
The record shows that on August 21, 1985, Claimant appeared before
the Dade County Circuit and County Court, and was sentenced to prison terms of
30, 15 and 15 years on the respective counts, the sentences to be served
consecutively, or for a total of sixty years confinement. By letter dated
September 25, 1985, Claimant was notified of his dismissal from Carrier's
service for violation of Mechanical Department Rule 3 and conduct unbecoming
an employe. Rule 3, referred to, reads in part:
Form 1
Page 3
Award No. 11201
Docket No. 11235
2-SSR-MA-'87
"(3) Disloyalty, dishonesty ...violations of
the law, vicious or uncivil conduct-will
subject the offender to dismissal."
We find and hold that the conducting of the Investigation in absentia, under the circumstances here involved, did not deprive Claimant of a fair
and impartial Investigation. Claimant's incarceration was attributable to his
own actions. See Second Division Awards Nos. 9943, 9554 and 8192.
In the handling of the dispute on the property, Court records were
introduced by the Carrier confirming the Court's action in sentencing the
Claimant to a total of sixty years in prison. Court documents are matters of
public record, and, as such, are admissible in proceedings of this nature at
any stage of handling.
We find that there was substantial evidence in support of Carrier's
action in terminating Claimant's employer-employe relationship. (See Third
Division Award No. 25263.) The Claim will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
.-
ancy J ~er - Executive Secretary
Dated at Chicago, .Illinois, this 4th day of March 1987.