Form 1 NATIONAL RAIhROAD ADJUSTMENT BOARD Award No. 12355
- SECOND DIVISION Docket No. 12345
92-2-91-2-181
The Second Division consisted of the regular members and in
addition Referee Donald E. Prover when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
Appeal of discipline of dismissal imposed upon Electrician R. S.
Gisczinski, Collinwood Radio Shop, Ohio, by the Consolidated Rail Corporation
on January 18, 1991.
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 was employed by the Carrier as a Radio Maintainer. The
Claimant did not work on December 10, 1990, one of his assigned days to work.
After arriving at work on December 11, the Claimant was questioned at length
by a Communications Supervisor regarding his absence on December 10. The
Claimant was asked why he had not called in but did not answer the question.
The Supervisor then instructed another employee to show the Claimant as being
"AO" Absent Without Permission. This action apparently angered the Claimant
and subsequently an altercation took place between the Claimant and the Supervisor following which the Supervisor called the Conrail Police Department.
The Claimant was held from service at 8:00 A.M. on December 11 and notified to
attend a trial on December 28, 1990 charged with violating Rule E, Rule 3013
and Insubordination. Under date of January 18, 1991 the Claimant was notified
he was dismissed from service having been found guilty of the charges.
Form 1 Award No. 12355
Page 2 Docket No. 12345
92-2-91-2-181
Rule E reads in-part, as follows:
"Gambling, fighting or participating in any illegal
immoral or unauthorized activity while on duty or on
Company property is prohibited."
Rule 3013 reads, as follows:
"Personal conduct must be free from scuffling,
practical jokes or horseplay while on duty or on
company property."
The Employees main argument in this case is that the Carrier failed
to meet the burden of proof to support its decision and in any event in the
light of Claimant's past record the discipline assessed the Claimant was excessive.
At the trial the Supervisor testified that during the altercation the
Claimant struck him and threatened his life. The Claimant, however, denies
striking the Supervisor or threatening his life. There were no witnesses to
the Claimant actually striking the Supervisor. The testimony of witnesses who
were nearby and came upon the scene immediately after the incident indicates,
however, that something happened causing the Supervisor's glasses and cap to
fall to the floor. These same witnesses testified that they overheard the
Claimant threaten the Supervisor's life. After carefully reviewing and
analyzing all the testimony given at the trial, some of which is in direct -
conflict, it is our conclusion that sufficient evidence was adduced to show
that the Claimant was guilty of the charges.
We find that while severe discipline was warranted in this case,
permanent dismissal was excessive. In reaching this conclusion we took into
consideration the fact that the Claimant had a clear discipline record for
fifteen years prior to this incident and that the Supervisor was not injured
and did not require medical treatment. Accordingly, the Claimant shall be restored to service with seniority and all other rights unimpaired, but without
any compensation for time lost while out of service. We would expect the
Claimant will have learned a lesson from this incident and that any future
differences with his supervisors will be handled in a business-like manner.
A W A R D
Claim sustained in accordance with the Findings.
Form 1
Page 3
Attest:
Nancy Infer - Executive Secretary
Dated at Chicago, Illinois, this 10th day of June 1992.
Award No. 12355
Docket No. 12345
92-2-91-2-181
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
,.",0
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-40
CARRIER MEMBERS' CONCURRING AND DISSENTING OPINION
TO
AWARD 12355, DOCKET 12345
(Referee Prover)
We do concur with the Majority's Findings that:
"...it is our coizclusion that sufficient
evidence was adduced to show that claimant
was guilty of the charge ...."
We do object to reinstating Claimant to service. What led to
the charge was Claimant's uncontrolled reaction to some simple
questions, to wit:
Why were you absent yesterday?
Why didn't you call in?
Claimant, upon refusing to answer these questions, was then
reported as absent without authority. Claimant's reaction was
to strike his supervisor after threatening "...to blow his ---brains out ...."
The Majority totally ignored the threat in its Findings and
returned Claimant to the same work environment with the utterly
incredulous Findings that:
"...the Supervisor was not impaired and did
not require medical treatment..."
Fortunately, the majority of Awards find that vulgar and
profane language coupled with threats against a supervisor are
grounds for dismissal. (See recently adopted Second Division
Award 12283.) Unfortunately, this Majority does not hold the
same view.
As a precedent, this is not. As an anomaly, this is.
To say we dissent is an understatement.
CMs' C&D Opinion
Page 2
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