Award No. 8821
Docket No. CL-10101
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Carroll R. Daugherty, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE NORTHERN PACIFIC TERMINAL COMPANY OF OREGON
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Clerks' Agreement when it dismissed W. C. Taylor from the service on charges that were unproven.
(2) The Carrier's action was arbitrary, harsh and an,abuse
of discretion.
(3) W. C. Taylor shall be restored to service with all rights
unimpaired and compensated for all wage loss sustained retroactive
to May 2, 1957.
OPINION OF BOARD:
Claimant, regularly assigned as Car Checker
in Carrier's Depot Yard Office, was also used (on overtime basis) as a
Boardman on April 3 and 8, 1957, and as Assistant General Yardmaster
Clerk on April 13, 1957. It is in connection with his work on the extra
board that Carrier, on April 19, 1957, notified him in writing to appear
for a hearing on six specific charges of misconduct. The investigation having
been held as scheduled, Carrier wrote Claimant on May 1, 1957, that he was
dismissed from service. This decision was appealed on up to the highest
officer designated by Carrier to handle such matters, final declination having
been given on June 19, 1957. The Employes on November 20, 1957, notified
this Division of intent to file an ex parte submission on said final decision,
and said submission was received here on January 3, 1958.
The Employes allege no important procedural defects in the handling of
this case. Their contentions are to the effect that the evidence adduced at
Carrier's investigation failed to support the charges against Claimant.
Accordingly, among the matters raised in Board Award No. 8431 the Board's
attention here is confined to (1) whether the evidence in fact did support
the charges and (2) if so, whether the degree of discipline imposed was
reasonably related to the seriousness of the proven offenses and to the past
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record of Claimant as an employe, as developed in the handling of his case
on the property.
As to the first issue, the Board, resisting the temptation to make this
Opinion as long as the record of the case, finds as follows:
(1) Substantial evidence adduced at Carrier's investigation
support Charges 1 and 3, that Claimant improperly ran around
extra employe Skalbeck and doubled regular employes Barncord and
Bicknell in filling machine-operation vacancies on position 503
on April 3 and 8, 1957. Claimant's own statements at the investigation, to the effect that green extra employes should not be
permitted to perform the work that seasoned railroader clerks
could do better, warrant the conclusion that he lacked respect for
Carrier's managerial decisions and presumed to substitute his own
judgment for that of Carrier's supervisors. The evidence shows
that Claimant failed to consult or consider information available to
him on whether Skalbeck was qualified to do the work of position
503.
(2) Substantial evidence also supports the first and more
important part of Charge 2. After Claimant permitted employe
Krieger to lay off from position 504, believing that extra employe
Semen was a qualified weigh-master, Claimant was led to believe
by fellow employes that Semon was not qualified. He failed to
check with Carrier's records and supervisors on the matter of
Semon's qualifications, then failed to get in touch with employe
Krieger and require him to work, again doubling a regular employe.
(3) Claimant admitted the validity of Charge 4. He failed to
read and reply with reasonable promptness to a letter from Assistant-to-Manager Blackburn requesting explanation of his abovementioned behavior as Boardman.
(4) Substantial evidence supports Charge 5, that, when Claimant handled the Extra Board during a short temporary absence of
Boardman Adkisson on the evening trick, he failed to follow a Memorandum of Understanding which, contrary to previous practice, now
authorized the use of extra men missing call on a given shift on
subsequent shifts before the lapse of 24 hours .from the missed-call
shift. Under the nevv Understanding two extra men were available. Yet Claimant doubled regular employe Mayfield until his
action was reversed by Adkisson after the latter's return.
(5) Claimant denied Charge 6, and Adkisson's testimony failed
to shake said denial, that Claimant berated him for "working
for the Company's interest".
The Board is compelled to conclude that the record of the investigation supported five of the six charges against Claimant. The second
question asked above must therefore be answered. Was Carrier's dismissal of Claimant so harsh as to constitute an abuse of managerial discretion?
The Board finds not. On the contrary, the Board rules that the penalty
was not unreasonably related to the nature of the proven offenses and to the
attitude of Claimant that could properly be inferred from his behavior and
words. Nor was the penalty unreasonably related to Claimant's past record.
Twenty "marks" against Claimant's record were cited by Carrier on the
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property. Of these, four involved formal hearings and resulted respectively,
in one reprimand, one record suspension of ten days, and two record
suspensions of 20 days.
In the light of all the above, the Board rules that the instant claims cannot
be sustained. Carrier did not abuse its discretion.
FINDINGS:
The Third Division of the Adjustment Board, after
giving the parties to this dispute due notice of hearing thereon, and upon
the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are
respectively carrier and employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein and
That Carrier did not violate the Agreement or abuse its discretion.
AWARD
Claims (1), (2) and (3) denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this let day of May, 1959.