Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11855
SECOND DIVISION Docket No. 11804
90-2-89-2-90
The Second. Division consisted of the regular members and in
addition Referee William 0. Hearn when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
Appeal of dismissal from service in all capacities of Electrician
L. L. Walters on October 11, 1988 by the Consolidated Rail Corporation at
Enola, Pennsylvania.
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.
On September 28, 1988, an Investigation was held for Claimant who was
charged with "carrying a loaded concealed hand gun in right hip pocket without
a permit while on duty September 14, 1988, at the Enola Locomotive Terminal."
On page 3 of the transcript, a Carrier witness was questioned by
Claimant's representative:
"Q. You stated it was Conrail policy that you
are not allowed to carry a hand gun on
Conrail property.
A. That is correct.
Q. Is it written down as fact?
A. Not in our safety book, however according
to Conrail policy and my previous dealings
with them, I was informed that employees
are not permitted to bring or carry firearms on company property."
Form 1 Award No. 11855
Page 2 Docket No. 11804
90-2-89-2-90
In reviewing the Hearing transcript several times, we are unable to
find any of Carrier's witnesses who could testify that Carrier had a written
Safety Rule prohibiting possession of weapons on the property.
As to Carrier's contention, Claimant did not have a permit to carry
the weapon, this is and was a matter for the courts to decide. This Board
does not have the authority to decide that issue.
Section 3, First (i) of the Railway Labor Act reads in part:
"*** disputes between an employee or groups of
employees and carrier or carriers growing out of
grievances or out of the interpretation or
application of agreements concerning rates of
pay, rules, or working conditions ***."
See Second Division Award 5954.
In Second Division Award 1122 it was stated:
"*** This Board cannot make or amend a rule.
It is bound by the agreements which the parties
have made ***."
The Board has heretofore held that such limitations have been placed
on it by law, and that it does not have the authority to write new rules.
This Board would like for the Claimant to clearly understand we do
not condone his action and that his Claim is being sustained based upon the
language of the Railway Labor Act and prior Awards of this Board. Claim
sustained as set forth in paragraph (e) of Rule 7-A-1 of the controlling
Agreement.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
Nancy Joer - Executive Secretary
Dated at Chicago, Illinois, this 16th day of May 1990. ·~rn'
CARRIER MEMBERS' DISSENT
TO
AWARD 11855, DOCKET 11804
(Referee Hearn)
Claimant was discovered carrying a loaded 2-shot
derringer concealed in his back pocket while on company
property and on company time. An Investigation was held
during which Claimant openly admitted he was carrying the
loaded derringer in his back pocket, and that he did not
have a permit to carry a weapon. He was discharged
accordingly.
He was reinstated with pay by this Board on the
sophistic theory that Carrier did not have a written rule
and/or policy precluding employees from carrying concealed
handguns, loaded, on the property; thus, it had no basis for
the charges, and Claimant could not be disciplined for such
a reprehensible act.
The Majority then concludes this travesty by sustaining
the Claim based allegedly upon the language of "...prior
awards of the Board ...." What "...prior awards of this
Board..." the Majority has reference to, only they know, but
prior Awards have upheld dismissal in like circumstances.
Second Division Award 6938:
"In fact we have held that the mere possession .of
firearms while on Carriers' premises justifies
dismissal (see Award 6479 and Third Division Awards
Awards 20199 and 20673)."
CMs' Dissent, Award 11855
Page 2
Second Division Award 9929:
"...Possession of a firearm on company property is a
serious offense ...."
Third Division Award 25016:
"...a number of awards upholding the dismissal of
employes for being in the possession of firearms, whip
on company property, have been issued by this
Division ...."
Third Division Award 26043:
"...Dismissal for the illegal possession of the loaded
weapon is not excessive."
Third Division Award 26250:
"...Claimant was in possession of a loaded firearm on
Carrier's property ...we are compelled to uphold the
Carrier's decision to discharge Claimant."
Award 11854 is so arbitrary, so capricious, so
off-the-wall, that it is unenforceable and certainly does
not establish any precedent to be cited in any other
dispute.
R. L. Hicks
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M. C. Lesnik
P. V. Varga
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