NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-19733
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employees
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
((Involving employees on lines formerly
( operated by the Wabash Railroad Company)
STAT!~`.`FVT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7129)
that:
(1) Carrier violated the provisions of the Schedule for Clerks,
effective May 1, 1953, when on June 8, 1971, it arbitrarily, capriciously
and is a flagrant abuse of discretionary authority, dismissed Clerk L. J.
Krupa from the service of the Carrier based on
unproven charges
in violation
of th" nrnvisions of Rule 28 of the Schedule for Clerks.
(2) Claimant will now be returned to work with all rights unimpaired.
(3) Claimant will now be paid for all time lost.
(4) Carrier will now be required to pay interest on all time lost
at the rate of one percent compounded monthly.
OPINION OF BOARD: The record discloses that L. J. Krupa, the claimant, was
hired by the Wabash Railroad on June 27, 1969 and was
assigned as a Westbound Yard Clerk at the 17th Street Boatyards, Detroit,
Michigan. On May 16, 1971 Car #N.Y.C.86563 arrived at the Boatyards and was
routed to Track #27, a track customarily used for "Bad Order" or customs
cars. The claimant Krupa, in the normal course of his duties, carded this
car as "Manifest" and became aware of the fact that a car door was open. He
then notified the carman, Mr. Dubanik. When later in the day he checked
again with Dubanik to see if the car door had been closed, Dubanik had not
done so. At about 9:00 p.m., while going about his duties in the yard, Krupa
all:-es that when he was at Track 924 he was summoned to Track #27 by Carman
Dubani'k to help him put a T.V. set, which was half in and half out of the
car, back into the car so that the car door could be closed. During the
cour~r of this activity Special Agents Vocina and Dupuie arrived at the scene
becruse they had observed someone jumping out of the car in question. There
is a conflict in the testimony as to exactly what had been happening during
this tine. The agents found Krupa and Dubanik on the scene, a television
,sot half in and half out of the car, debris from opened cartons on the ground,
,nd ta,i zdditional television sets out of their cartons, on the ground.
Award Number 19487 Page 2
Docket Number CL-19733
As a result of this incident Krupa was advised by Supt. H. C. Scott
on May 27, 1971 to report for an investigation on June 2, 1971 in connection
with a charge by the carrier of the alleged unauthorized removal of television
sets from car #86563. Following the investigation on June 8, 1971 the Carrier
advised the claimant, Krupa, that he was terminated. The Organization appealed
the termination on the ground that there was not an impartial investigation
because Supt. Scott had allowed all witnesses to remain in the interrogating
room to listen to all the testimony, over the protest of the claimant's
representative. And furthermore, the interrogating officer asked leading
questions of the carrier's witnesses.
This Board has held on innumerable occasions in the past that absent
a specific rule in the contract between the parties requiring sequestration
of witnesses, the Carrier's failure to exclude witnesses from the hearing
room until called to testify, did not deny claimant a fair and impartial hearing. (Awards Nos. 5061
(Ives). In the context of this case the exclusion of witnesses while not
testifying is discretionary.
This Board's review of the facts in this case is limited to the
determination of whether the original hearing officer was convinced by substantial evidence and was
thrust of the testimony that the claimant, Krupa, had not reported to anyone
in authority at the Boatyard, other than Carman Dubanik who was admittedly
with him at the scene, that the car door was open or that the television sets
were out of the car. Krupa's claim that he attempted to notify others in
authority at another terminal six miles away was not supported by any witness.
While there may be a conflict between the testimony of the parties,
it is not for this Board to resolve that conflict. Where the evidence adduced
at the property is substantial and the decision was not arbitrary or capricious,
then the decision of the Carrier, both as to the question of guilt and the
amount of discipline to be invoked, should not be interfered with.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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;
Award Number 19487 Page 3
Docket Number CL-19733
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 17th day of November 1972.