NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20031
Irwin M. Lieberman, Referee
( Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and Station
( Employes
PARTIES TO DISPUTE:
( George P. Baker, Richard C. Bond, Jervis Langdon, Jr.,
( and Willard Wirtz, Trustees of the Property of Penn
( Central Transportation Company, Debtor
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7241)
that:
(a) The Carrier violated the Rules Agreement, effective February 1,
1968, particularly Rule 6-A-1, when it assessed discipline of 30 days suspension on G. W. Holtz, Cle
Eastern Region.
(b) Claimant G. W. Holtz's record be cleared of the charges brought
against him on August 6, 1971.
(c) Claimant G. W. Holtz be compensated for wage loss sustained
during the period out of service.
OPINION OF BOARD: Claimant, an employee with 26 years service, was charged
and found guilty of using abusive language to the Terminal
Superintendent by telephone on August 5, 1971; he was assessed a thirty day
Petitioner argues that Claimant was misled as to the seriousness of
the proceedings by the Hearing Officer in that he was told that "...this is
an investigation only." We do not agree. Claimant had been a party to prior
disciplinary investigations and there is nothing in the record to substantiate
the argument.
It is contended further by Petitioner that Claimant was denied due
process in that the Hearing Officer did not render the judgement and assess
the discipline, but that these functions were performed by a Carrier official
who was not present at the hearing. Since a credibility determination was
made, it is argued that this deficiency significantly affected Claimant's
right to a fair hearing. Carrier states, correctly insofar as the record indicates, that this issue
and hence cannot be considered. (Award 16348)
i
Award Number 19925 Page 2
Docket Number CL-20031
It is further urged by Petitioner that the hearing was not fair
and impartial in that the Hearing Officer did not attempt to develop all the
relevant facts. This contention was not amplified in any respect to indicate
what the relevant acts were which were omitted. Although it would have been
helpful to have certain matters raised by Claimant clarified, notably the
language used by the Superintendent which allegedly was found offensive by
Claimant, we are not persuaded that the brevity of the hearing materially
affected Claimant's rights. We must note that Claimant chose not to be represented, chose not to dis
of the opportunity to cross-examine his accuser.
The record of the investigation clearly shows that Claimant did use
at least one mildly abusive phrase to the Superintendent in the telephone conversation alluded to. T
foreman present did not hear such language although he did hear the other
phrase. Also, there is nothing in the record to shed light on the allegedly
bad language used by the Superintendent although it was admittedly not directed against Claimant.
This Board cannot condone abusive language or other forms of insubordinate behavior; in the past
In this case however, we do not think that the penalty imposed was appropriate;
it was excessive. Under all the circumstances a thirty day suspension for the
phrase: "...stick your head in the commode and flush it," was harsh and inappropriate. The record do
Therefore we shall reduce the penalty to a ten day suspension without pay.
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 meaining 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 the penalty was excessive.
I-- ___
Award Number 19925 Page 3
Docket Number CL-20031
A W A R D
The discipline shall be reduced to a ten day suspension;
Claimant shall be made whole for the additional time out of service in
conformity with Rule 6-A-1(h).
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 7th day of September 1973.
NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number 19925
THIRD DIVISION Docket Number CL-20031
Irwin
M.
Lieberman, Referee
( Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and Station
( Employes
PARTIES TO DISPUTE:
( George P. Baker, Richard C. Bond, Jervis Langdon, Jr.,
( and Willard Wirtz, Trustees of the Property of Penn
( Central Transportation Company, Debtor
STATEMENT OF
CLAIM:
Claim of the System Committee of the Brotherhood (GL-7241)
that:
(a) The Carrier violated the Rules Agreement, effective February 1,
1968, particularly Rule 6-A-1, when it assessed discipline of 30 days suspension on G. W. Holtz, Cle
Eastern Region.
(b) Claimant G. W. Holtz's record be cleared of the charges brought
against him on August 6, 1971.
(c) Claimant G. W. Holtz be compensated for wage loss sustained
during the period out of service.
OPINION OF BOARD: Claimant, an employee with 26 years service, was charged
and found guilty of using abusive language to the Terminal
Superintendent by telephone on August 5, 1971; he was assessed a thirty day
suspension.
Petitioner argues that Claimant was misled as to the seriousness of
the proceedings by the Hearing Officer in that he was told that "...this is
an investigation only." We do not agree. Claimant had been a party to prior
disciplinary investigations and there is nothing in the record to substantiate
the argument.
It is contended further by Petitioner that Claimant was denied due
process in that the Hearing Officer did not render the judgement and assess
the discipline, but that these functions were performed by a Carrier official
who was not present at the hearing. Since a credibility determination was
made, it is argued that this deficiency significantly affected Claimant's
right to a fair hearing. Carrier states, correctly insofar as the record indicates, that this issue
and hence cannot be considered. (Award 16348)
i
Award Number 19925 page 2
Docket Number CL-20031
It is further urged by Petitioner that the hearing was not fair
and impartial in that the Hearing Officer did not attempt to develop all the
relevant facts. This contention was not amplified in any respect to indicate
what the relevant acts were which were omitted. Although it would have been
helpful to have certain matters raised by Claimant clarified, notably the
language used by the Superintendent which allegedly was found offensive by
Claimant, we are not persuaded that the brevity of the hearing materially
affected Claimant's rights. We must note that Claimant chose not to be represented, chose not to dis
of the opportunity to cross-examine his accuser.
The record of the investigation clearly shows that Claimant did use
at least one mildly abusive phrase to the Superintendent in the telephone conversation alluded to. T
foreman present did not hear such language although he did hear the other
phrase. Also, there is nothing in the record to shed light on the allegedly
bad language used by the Superintendent although it was admittedly not directed against Claimant.
This Board cannot condone abusive language or other forms of insubordinate behavior; in the past
In this case however, we do not think that the penalty imposed was appropriate;
it was excessive. Under all the circumstances a thirty day suspension for the
phrase: "...stick your head in the commode and flush it," was harsh and inappropriate. The record do
Therefore we shall reduce the penalty to a ten day suspension without pay.
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 meaining 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 the penalty was excessive.
Award Number 19925 Page 3
Docket Number CL-20031
A W A R D
The discipline shall be reduced to a ten day suspension;
Claimant shall be made whole for the additional time out of service in
conformity with Rule 6-A-l(h).
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 7th day of September 1973.