NATIONAL RAILROAD AD,TUSTMENT BOARD
THIRD DIVISION Docket Number MW-20355
Irwin M. Lieberman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Trackman R. W. Kelley on January 10, 1973
was without just and sufficient cause and wholly disproportionate to the
offense with which charged (System File R. W. Kelley/12-39 (73-1)).
(2) Trackman R. W. Kelley be restored to service with seniority,
vacation and all other rights unimpaired; his record be cleared of the
charge; he be reimbursed for all wages lost.
OPINION OF BOARD: Claimant was dismissed from service on January 10, 1973
having been afforded an investigatory hearing and hav
ing been found guilty of assaulting his foreman.
Petitioner made no contention that any of Claimant's procedural
rights were violated and predicated its case on the argument that the foreman was the aggressor. The
Claimant. Three witnesses and the Foreman all testified that Claimant struck
the Foreman a few times without any provocation; Claimant testified that he
indeed struck the Foreman first, but in self-defense since the Foreman had a
knife in his hand.
The Board has held over a long period of time that it will not
make credibility findings in disciplinary cases; the Carrier's judgment must
be accepted when there are conflicts in testimony. In this dispute the preponderance of the testimon
we see no reason to characterize the discipline imposed as being improper
in any sense; the sanction of discharge for assault cannot be termed arbitrary or capricious.
In view of the foregoing, the claim is denied.
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;
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Award Number 20246 Page 2
Docket Number MW-20355
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 the Agreement was not violated.
AA W-
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive ecretary
Dated at Chicago, Illinois, this 17th day of:day 1974.
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