NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-22914
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Foreman Ira L. Toland, Jr. was without just
and sufficient cause, unwarranted and on the basis of unproven charges
(Carrier's File 013.31-198).
(2) Foreman Ira L. Toland, Jr. shall be reinstated and compensated
for all wage loss suffered in accordance with Rule 13-2."
OPINION OF BOARD: Claimant, with about nine years of service, was
employed by the Carrier as foreman of Section 015.
He was working under the supervision of Roadmaster W. R. Mapes on the date
of the occurrence out of which the present dispute arose. On October 17,
1978, claimant was dismissed from service by Roadmaster Mapes by letter
reading:
"You are hereby dismissed from the service of the Kansas
City Southern Railway Company, effective immediately,
for your conduct toward law enforcement officers at or
near Carl Junction, Missouri on October 11, 1978 in
violation of Rule 'N' of the Maintenance of Way and
Signal Department Rules and Regulations effective
December 1, 1973.
"Arrange to turn in all company equipment, keys and
reports now in your possession."
On the same date, October 17, 1978, claimant was instructed to
attend investigation on October 26, 1978, to:
"...,
ascertain the facts and determine your
responsibility in connection with violation of Rule 'N'
of the Maintenance of Way and Signal Department Rules
and Regulations effective December 1, 1973 occurring
at approximately 1:00 PM on October 11, 1978 at intersection of Highways 171 and 'Z' Highway near Ca
Junction, Missouri."
Award Number 22797 Page 2
Docket Number MW-22914
The investigation was conducted as scheduled, following which,
on November 14, 1978, claimant was advised by the Division Engineer that
his "dismissal from the service of this Company is reaffirmed." A copy
of the transcript of the investigation has been made a part of the record.
A review of the transcript, and the appeal of the dispute on the property,
shows that none of claimant's substantive procedural rights was violated.
The investigation was thorough and was conducted in a fair and impartial
manner. While there were some conflicts in the testimony, it is well
settled that this Board will not attempt to resolve conflicts in testimony,
weigh the evidence, or pass upon the credibility of witnesses. These
functions are reserved to the Carrier.
Carrier's Rule "N" of the Maintenance of Way and Signal Department
Rules and Regulations, effective December 1, 1973, referred to in the
letter of dismissal and letter of charge of October 17, 1978, reads in
part as follows:
"N. Courteous deportment is required of all employes
in their dealings with the public, their subordinates
and each other."
Without detailing all the evidence adduced at the investigation,
suffice it to say that there was substantial evidence in support of the
charge against the claimant. The Carrier's action in imposing the discipline
that it did was not arbitrary, capricious or in bad faith. There is no
proper basis for the Board to interfere with the discipline imposed.
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.
Award Number 22797 Page 3
Docket Number W-22914
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 31st day of March 1980.