The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
It is the position of the ® ` tion that Claimant was deprived of a fair and impartial Investigation because the Hearing Officer did not recognize that the Lead Technician Director (Carrier witness) who was responsible for gathering facts and evidence to be presented at the Hearing had prejudged the Claimant which was apparent by her testimony that was fraught with personal opinion and/or biases. It further argues that Claimant was not guilty of making alleged threatening remarks to his co-workers, but had simply engaged in crass language, sometimes referred to as "shop talk" within the industry.
Carrier argues there is no substance to the Organization's argument that Claimant was denied a fair and impartial Investigation. It also submits that the record indicates that the Claimant threatened his co-worker and invited violence. This was a serious act of misconduct which required the termination of the Claimant. Form 1 Award No. 13921
The Board has thoroughly reviewed the transcript and record of evidence and finds no merit to the Organization's argument that Claimant was deprived of a fair and impartial Investigation. The dispute will be resolved on its merits.
The facts are Claimant was employed as an Electrician at the Carrier's Locomotive Facility in. Denver, Colorado. On July 19, 2005, Claimant confronted two co-workers R. Mascarenas and D. Little who were waiting outside a tool-room in the locomotive shop for its attendant's help. While standing there, Claimant rode up on an electric car and parked a few feet behind them. Addressing Mascarenas, Claimant stated "Any time, any place you fat motherfucker!" He then came closer and forcefully threw locomotive parts into a trash can next to where Little stood.
Claimant's defense that he was snaking a friendly gesture to a fellow employee was not helped any by Lasick, who in a written statement said he did not bear the alleged greeting, but instead wrote that he did hear Claimant talking to someone. That statement does not conflict with the testimony of the employee who stated he had been threatened and the other employee who heard the Claimant's threat, but instead confirms that the Claimant addressed Mascarenas.
The Organization vigorously argued in behalf of the Claimant that he merely engaged in "shoptalk". However, that argument does not meet the test of what is "shoptalk". Shoptalk within the railroad industry has often been characterized as being language that is coarse, rough and sometimes vulgar. Claimant's statement went beyond the use of foul language as it was a direct threat of intimidation. Form 1 Award No. 13921
A review of the testimony of Mascarenas and Little shows it to be in conflict with that provided by the Claimant. However, that testimony was far more credible than Claimant's self-serving statements. Additionally, there is no indication that either employee had anything to gain by fabricating testimony. The Carrier in this instance met its burden of proof that Claimant was guilty as charged of threatening a co-worker.
The only issue remaining is whether dismissal was appropriate. Violence in the workplace should and cannot be tolerated and the Carrier has a legal obligation to provide a safe work environment for its employees free of potentially violent employees. The Claimant has a less than stellar work history which includes violating the absenteeism policy, displaying demeaning tattoos in violation of instructions to keep them covered while at work and making threats against a janitorial contractor. In addition it came to light ' e the case was being handled on the property that Claimant pleaded guilty to assaulting Mr. Mascarenas in public and threatening to kill him. Claimant's conviction coupled with a permanent restraining order to stay away from Mr. Mascarenas and the Carrier's Locomotive Facility proves that Claimant has a violent nature. The Board finds and holds that the dismissal was appropriate as it was not arbitrary, excessive or cap . . dis `line wilt not be set aside.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made. Form I Award No,. 13921