NATIONAL RAILROAD AAJUS'2QENT HOARD
THIRD DIVISION Docket Number CL-22584
(Brotherhood of Railway, Airline and Steamship Clerks,
PARTIES TO DISPUTE: ( Freight Handlers, Express and Station Employes
(Chicago, Milwaukee, St. Paul and Pacific Railroad company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8580) that:
1) Carrier violated the Clerks' Rules Agreement at Milwaukee,
Wisconsin on February
16,
1977 when it failed to conduct a fair, impartial and
complete investigation into charges filed against employes W. P. Ciesinaki,
D. Mazurczak and D. H. Dave.
2) Carrier further violated the Clerks' Rules Agreement on
February 26, 1977 when, in abuse of its discretion it assessed discipline
of a 90-day deferred suspension with one (1) year probation against the
employes named above without first presenting convincing evidence to prove
their responsibilities or guilt.
3)
Carrier shall be required to erase the discipline imposed and
the records of all three employes named above shall be cleared of the alleged
charges.
OPINION (IF BOARD: The three Claimants involved in the instant dispute were
employed as Store - helpers in Carrier's Material Department
at Milwaukee, Wisconsin. On February 11, 1977 each Claimant received the follow
ing letter:
"A formal investigation will be held on
Wednesday, February
16,
1977 at 9:00 a.m.
in the office of the Manager of Materials
for the purpose of developing the facts
and circumstances in connection with the
following. You are hereby instructed to
be present at the time, date and place as
mentioned herein.
1. For alleged violations of the
CMStP&P Safety Rules namely General
Notice, General Rule A and specifically Rules 109 and 114 on or about
10:00 a.m. on February 1, 1977.
Award. Number 23091 Page 2
Docket Number
CL-22584
2.. For allegedly participating in
the burning of a volatile, flammable
liquid on or about 10:00 a.m. on
February 1,
1977
in the men's toilet
room on the north end of
SD-43.
3.
For alleged failure to report a
fire in the men's toilet room on the
north end of
SD-43
on or about 10:00
a.m. on February 1,
1977.
4.
For allegedly destroying company
material on or about 10:00 a.m. on
February 1,
1977.
5.
For allegedly using company material
without proper authorization on or about
10:00 a.m. on February 1,
1977.
You may be represented by one or more duly accredited
representatives."
Claim was filed on behalf of Claimants by the Organization on May 20,
1977.
The Organization maintains that Carrier has not met its burden of proof
in establishing presence of Claimants at the site of the arson incident at the
alleged time of its occurrence. As support for this argument, the Organization
points to the congruence of Claimants' testinony as to location and activity
during the alleged incident, contrasted with the lack of such complete uniformity of Carrier witness
not persuaded that absolute homogeneity of testimony is an unerring indicator
of veracity. Indeed, there is evidence in the transcript that Claimants assembled on at least one oc
where we were at exactly what time . . . ."
Based upon a careful reading of tk.e ponderous and convoluted transcript before us we find that Carr
with respect to time among Carrier witnesses' testimony are not so severe as
to discredit any single witness. Moreover, upon being questioned separately,
Claimants failed sufficiently to refute the six Carrier witnesses. One alibi
witness for Claimants was caught in blatant fabrication of facts in an attempt
to corroborate Claimants' story. We find from the record that Carrier did not err
in resolving the credibility conflict against Claimants.
Award Number 23091 page
3
Docket Number CS,-22584
Accordingly, we find that Carrier has met its burden of proof
based on a preponderance of the evidence before us. Wee therefore, find
no reason to disturb Carrier's assessment of discipline.
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;
That the Carrier and the Employes involved in this dispute ere
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 POARD
By Order of Third Division
ATT&iT:
&/
Dated at Chicago, Illinois, this 15th day of December
1980.