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                    Docket Number CL-22085


            2. That you allegedly engaged in conduct. unbecoming

            an employe in your conversation with Agent

            B. J. Culver at or about 4:30 p. m. on April 21,

            1976.


By letter dated May 10, 1976 the Carrier notified the Claimant that he was suspended for 30 days as follows:

            "Formal investigation was held in the Transportation Department Conference Room, Main Office Building, Kirk Yard, Gary, Indiana, commencing at 9:33 a.m. on Tuesday, May 4, 1976, at which you and your representatives were present. At this investigation it was determined:


            1. That you engaged in the conduct of union oriented

            activities while on duty and without proper

            permission at or about 4:30 P.m. on April 21, 197_6,

            involving Agency Clerk A. J. Piwowar, in that as

            brought out in the testimony you (1) discussed a.._=...__.__

            grievance with Clerk A. J. Piwowar and Agent -B. J:--

            Culver at or about 4:30 p. m. on that date;- (2)

            you were on duty and did not have proper permission

            to engage in such union oriented activities; and - -

      _ (3) this action by you was. taken in spite of prior

              carrier instructions that such activities by you,

              while on duty, were to be discontinued.


              2. That you engaged in conduct unbecoming an employe in you--- conversation with Agent B. J. Culver at or about 4:30 p.m. on April 21, 1976, in that as brought out in the testimony (1) you were agitated and not using your normal tone of voice (that the tone of voice was higher than necessary to overcome any noise level in the office) and (2) your choice of words was not appropriate for use and discussion with another employe or supervisor.


            For your responsibility in this matter you are hereby suspended from the service of the Elgin, J Railway Company for a period of thirty (30) days, commencing on May 10, 1976 and continuing through June 8, 1976.

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                    Award Number 22041 Page 3

                    Docket Number CL-22085


            "Your personal record was reviewed and considered, in part, in the determination of the degree of discipline assessed ...."


            We find the charges were adequate to allow the Claimant to

prepare a defense. .We find that the Carrier's use of Exhibit "J" before this Board in any context is totally contrary to the language therein:

            "Without prejudice to the position of either party in future or similar cases, the Carrier agreed to clear the Claimant's record and compensate him for all time lost."


We find that the usage of Exhibit "J" is highly improper. The Carrier asserts in its submission before this Bcard that the Claimant is guilty of insubordination. The Claimant was not charged with insubordination nor was he found to be responsible by the Carrier for insubordinate conduct. As such the Carrier's assertions in this regard are a burden on this record and a-re rejected a§ totally untenable.

 The Organization contends that the Hearing Officer's. conduct was improper in that he refused to call witnesses requested by the Employes, which caused the rendering of a decision without all pertinent evidence. The Employes,sought to establish what the understanding was on the property with respect to the discussion of labor relations matters between the Local Chairman and those Carrier Officials that were requested as witnesses. This request was denied by the Hearing Officer. We find that since the Claimant was charged with the offense of conducting union oriented activities and since the Carrier clearly contended at the investigation that the fact that a conversation took place between the Claimant and Mr. Culver on union related business without permission from his supervisor was a disciplinary offense, the Claimant was entitlted to have a reasonable number of witnesses to prove the practice of the parties on the requirement of permission for the Local Chairman to discuss a matter with
 Carrier Officials. The record does indicate, and it is not rebutted by j
 the Carrier, that Carrier Officers had normally consulted with the
 Claimant and the Claimant had normally consulted with them, concerning
 union-management related matters, without first getting permission from
 his supervisor. As such, this Board will review the assessed discipline
 accordingly. We find that this ruling of the Hearing Officer is not a
 basis to overturn the entirety of the Carrier's findings and discipline.
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                    Award Number 22041 Page 4

                    Docket Number CL-22085


Referring to the findings in the Hearing Officer's letter of May 10, section 1, we find that the Claimant did violate Rule 58 of the Agreement by listening to·,Clerk Piwowar's grievance. Rule 58 required that the Claimant obtain permission to consult with an employe during working hours, and this the Claimant did not do. The evidence of record is clear that when Clerk Fiwowar met with the Claimant, he was crying and very upset. The Claimant testified that he thought Mr. Piwowar was going to have a heart attack. The Carrier gave notice to the Claimant by letter of October 12, 1975 that he was not to make statements or announcements to the clerical group without making prior a Carrier under Rule 58. The Carrier would be within its rights to dock the Claimant for the time in question, and to issue a reprimand. However under the circumstances of disciplinary suspension for such consulting with an employe in such a state without obtaining permission to do so.

 Mr. Culver discussed the matter with the Claimant without questioning whether the Claimant had permission to speak to him. Mr. Seabron, the Claimant's immediate supervisor; who observed the Claimant on the telephone and heard in part the content of the discussion, did not take any exception at any time to the Claimant talking to Mr. Culver on a union related matter, but instead inquired about the reason for withdrawing the vacation agreement.. 41e.found.._._.. previously that the unrebutted testimony indicated that the Claimant had in'fact initiated discussion of union related matters with Company Officials without objection, and without threat of discipline. It is within the Carrier's right to require that employes under pay get permission from their supervisor to discuss a union-management related matter with a Carrier Official. But, we find that the Carrier cannot change a longstanding understanding without a clear and precise notice of intent to that effect.

 Section 2 of the May 10, 1976 letter finds the Claimant responsible for conduct unbecoming an employe for being "agitated and not using your normal tone of voice (that the tone of voice was higher than necessary to overcome any noise level in the office)." This Section states as a further basis for the finding of conduct unbecoming an employe that "your choice of words was not appropriate for use and discussion with another employe or supervisor."
                  Award Number 22041 Page 5

                  Docket Number CL-22085


        Mr. Culver testified as follows:


            "Okay, after explaining to Mr. Shikitis what we were

            doing, he informed me that that was in variance with

            the vacation agreement and then furthermore he stated

            that we were not in compliance with the basic agree

            ment, okay, by not cooperating with Mr. Piwowar. By

            this time, Mr. Shukitis and I had some dialogue and

            he had become - his voice had gotten very loud= he---

            was loud and he verbally attacked me and by attack _.____

            I mean that he would state a charge - he would not

            hermit me to respond to the-charge - he would just

            repeat the charge, belabor the point by shouting down

            any response that I tried to make, continually

            inter---outing me and reueating his charges. Finally;

            I shouted at one point - he said that you're not

            cooperating with Piwowar and I shouted that's just

            not true - that's not true and at that point he said

            to me, I don't believe you I have Andrew Piwowar

            here - I believe him before I believe any supervisor

            and you guys are just out to get me, you're out to- --

            screw me, but I'm not going to let it haupen, I'm

            going to screw you by shoving this vacation agreement

            up your ass. He said he was going to mark off, go

            home and have his wife type up the letter to withdraw

            the agreement at that time, immediately. I told him

            that I didn't think that response was warranted.

            This was the first man to take a vacation job this

            summer. He'd only worked in there for two weeks.

            I didn't believe that any dispute was so major that i

            it required that but he told me, he said I'm going

            to teach you - I can screw you - I can screw you and

            I can screw this comnany I'm going to withdraw that

            vacation agreement ....:." (emphasis added)


The matter of permission aside, as the duly authorized representative of the clerical employes, the Claimant was entitled to vigorously represent the interests of employes under his jurisdiction without fear of discipline. To allow the Carrier to discipline a Local Chairman for being "agitated and not using your normal tone of voice" when representing the interests of an employe is untenable. Or, to discipline a Local Chairman where he argued ineffectively by repeating the charges and interrupting responses would also be untenable.

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                    Award Number 22041 Page 6

                    Docket Number CL-22085


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Such would have the effect of dampening the vigor in which employe I
 rights under the Agreement would be pursued, and indeed would serve to
 deter employe representatives on this property from pursuing
 legitimate grievances because of the risk of discipline and loss of
 income.

 "Choice of words" by a Local Chairman, in conference with the Carrier, not impacting personally on Carrier Officials, other employes or within the hearing of customers, while not condoned, should not be a subject of discipline, but rather may result in the Carrier Officer terminating the discussion until a more professional manner of labor relations can be followed by the local chairman. In the instant case however, the Claimant's words were in part specifically abusive to Mr. Culver.

            "You guys are out to get me, you are out to screw me, but I'm not going to let it happen, I'm going to screw you by shoving this vacation agreem°nt up your ass ...."


While there exists no corroboration to Mr. Culver's testimony, and while the Claimant denies having used such language, we find that Mr. Culver's testimony is substantial evidence of record to support the Carrier's .finding that such language was used. And, such language is of a personally abusive nature and a proper basis for discipline once the Carrier made the credibility choice. We find that the Carrier need not tolerate such conduct from an employe who is under pay, even though such employe is conducting union related business with the Carrier. And, it must be pointed out that such a finding is limited to the extremely narrow facts of the instant case.

 We find that the 30 days'suspension is unwarranted in part, and excessive and unreasonable as it now stands; and the discipline shall be reduced to a 10-workday suspension, with the Claimant being made whole for all of the remaining workdays lost because of the suspension.

 We recommend that the parties follow the below listed procedures in discussing grievances in the future:

          1. The moving party presents his or her case in its entirety without interruption or objection.


          2. The responding party then presents its side in its entirety, until he or she chooses to rest.

                  Award Number 22041 Page 7

                  Docket Number CL-22085


          3. The first party is entitled to a full response, and the second party may then proceed, until ultimately on this basis, the matter is fully discussed. Neither party is obligated to continue discussions that are acrimonious in nature, or pursued with offensive language.


It is in the best interest of both the Organization and the Carrier to conduct labor relations in a civil and professional manner; and we strongly urge the parties to do so.

        FINDINGS: The Third Division of the Adjustment Hoard, 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;

 That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        The Claim is sustained in accordance with Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: Z/00 i
 Executive Secretary

        Dated at Chicago, Illinois, this 28th day of April 1978.