NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-22517
(Brotherhood of Railroad Signalman
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMNP OF CLAIM: "Claim of the General Committee of the Brother
hood of Railroad Signalmen on the Seaboard Coast
Line Railroad Company:
Claim on behalf of Nr. L. C. Pugh, Signalman, in Signal
Gang No. 7, for reinstatement to his former position, with all rights
restored and reimbursement of all monies lost account of his dismissal on June 27, 1977, when Carrie
and impartial hearing on June 14-15, 1977."
LCarrier file:
15-47 (77-2)
J/
OPINION OF BOARD: On June 3, 1977, claimant was instructed to
attend formal investigation:
" ....to develop the facts and place your responsibility in
connection with recent incidents in which you have been
involved, some of which are listed below:
4/25/77 Unauthorized absence and failure to notify
intention or need for absence. (Rule 709).
4/27/77 Cutting out a 'working' signal case between
Leeds and Landrum, S. C. (Incompetence).
5/12/77 Cutting out highway signal case that was still
working and
in
service. (Incompetency
and
failure to follow instructions).
5/16/77 Unauthorized absence from job without notice or
permission. (Rule 709)
5/31/77 Insubordination, vicious and uncivil language and
conduct while refusing to paint signal as instructed
by Mr. E. L. Wilkes. Witnessed by Mr. D. R Croslyn.
(Rule G).
Award Number 22521 Page 2
Docket Number SG-22517
"In connection with the above, you are charged with
possible violation of those parts of Rule G-1 relating
to disloyalty, desertion, vicious or uncivil conduct,
insubordination, incompetency, making false statements
and Rules 701, 709, 1181.
Your personal record will be reviewed.
You may be represented at this investigation in accordance with the Agreement under which you are em
Following a rather lengthy investigation conducted on
June 14 and 15, 1977, claimant was notified on June 27, 1977, of
his dismissal:
"This refers to investigation conducted by Trainmaster
E. H. Croom in Abbeville, S. C., on June 14 and 15, in
which you were charged with rule violations for various
reasons on various dates.
"This is to advise that the transcript of this investigation reveals that you were clearly in violat
parts of Rule G-1 relating to disloyalty, desertion,
vicious or uncivil conduct, insubordination, and Rule 1181
for your action on May 31, 1977, when you failed to follow
instructions of Mr. E. L. Wilkes, Assistant Signal Construction Supervisor, concerning the painting
"You are hereby dismissed from the services of the SCI.
Railroad for your violation of the above-mentioned rules.
"During the course of this investigation, you were
advised that you would be charged with insubordination if
you continued to refuse to answer questions needed to
develop pertinent facts concerning the matters under
investigation, and you were so charged. The investigation
covering these latest charges will not be scheduled for
now since the previous charges resulted in dismissal.
"A copy of the transcript is attached."
Award Number 22521 Page 3
Docket Number SG-22517
The claimant was present throughout the investigation and
was represented by the General Chairman of the Organization. At the
insistence of the claimant and the General Chairman, a Director of
Affirmative Action and Field Operation, Florence County Office of
Economic Operation, was permitted to sit-in on the investigation as
an observer, which was beyond the requirements of the Agreement.
The General Chairman of the Organization engaged in extensive
questioning of all witnesses throughout the investigation. The
only exception taken to the letter of charge was that it contained
several different charges "at one investigation."
The Discipline Rule of the Agreement under which the
investigation was conducted permitted the claimant to call witnesses
to testify in his behalf.
Following claimant's dismissal, in the handling of the
dispute on the property, the General Chairman contended that a fair
and impartial investigation was not conducted by the interrogating
officer; protested the Carrier charging claimant with multiple
charges; contended that certain witnesses were not called, and
contended that he (the General Chairman) was not given the opportunity
to ask questions many times during the investigation.
We have carefully reviewed the entire transcript of the
investigation and do not find sufficient support for the General
Chairman's contentions to vitiate the entire proceedings. The
interrogating officer was persistent in his questioning of the
claimant. However, the claimant was evasive in his answers, at
times to the extreme. It was up to the interrogating officer to
conduct the investigation in =n orderly manner, and while he (the
interrogating officer) was persistent in his questioning of claimant,
his persistence did not necessarily constitute prejudice or render
the investigation void.
So far as multiple charges are concerned, the Discipline
Rule of the Agreement provides that the accused will be advised in
writing of the "exact charge or charges which have been made against
him." There is, therefore, no basis for the contention concerning
multiple charges.
Award Number 22521 Page 4
Docket Number SG-22517
As to witnesses being present, all witnesses requested by
the claimant or his General Chairman were present, and, in addition,
the interrogating officer offered to postpone the investigation so
that the General Chairman could procure further witnesses; however,
the General Chairman elected not to postpone the investigation.
The Organization has no proper basis for complaint in this respect.
AS
to the contention that the General Chairman was not
permitted to ask questions many times during the investigation, the
transcript shows extensive questioning of practically all witnesses
by the General Chairman, although at times he was told by the
interrogating officer that he would have to wait his turn to speak.
We see nothing improper or prejudicial by this.
In its submission to the Board the Organization reiterates
about the same contentions raised by the General Chairman in the
appeal on the property, and also complains that the introduction
of claimant's past record in the investigation precluded a fair and
impartial hearing. Although a few awards have held it to be
improper to include an employe's past record in the transcript of
the investigation, other awards have held to the contrary, where
the past record was not used to determine guilt, but for the purpose
of determines the discipline to be imposed for a proven offense.
This Referee agrees with the latter group of Awards. See recent
Award 22460. It is also worth noting in the present case that the
claimant was advised in the notice of charge that his personal
record would be reviewed, and no exception was taken to this portion
of the charge by the claimant or his General Chairman, either in the
investigation or in the on-property handling. It is too late for
the issue to be raised for the first time before the Board.
Also in its submission to the Board, the Organization
contends that the hearing officer "did in fact advise the claimant
that a charge of insubordination would be filed against him because
he did not answer the question in the manner the hearing officer
wanted him to answer." The hearing officer was seeking an
unequivocal answer to a question having a direct bearing an the
subject then at issue. We have carefully reviewed the on-property
handling following claimant's dismissal, and we do not find that
this issue was directly raised in the appeal procedure. This
would be proper basis for dismissing the contention raised for the
first time before the Board. However, we think it more important
Award Number 22521 Page 5
Docket Number SG-22517
that the insubordination issue raised in the Organization's
submission was not in connection with the charge for which claimant
was dismissed, i. e., his actions on May 31, 1977.
As heretofore indicated, based upon our careful consideration of the entire record, we do not fi
in the manner in which the hearing was conducted to void the entire
proceeding, especially when we bear in mind the charge upon which
claimant was dismissed.
AS
to the merits of the dispute, there was substantial
credible evidence in the investigation concerning claimant's
actions on May 31, 1977, to support the charge for which he was
dismissed. There was direct evidence that he was insubordinate to
and made threats against supervisory personnel. The claimant was
guilty of conduct that simply cannot be condoned.
The claim will be 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;
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
172d/:64~
Executive Secretary
Dated at Chicago, Illinois, this 28th day of September
1979.