NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23436
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Section Laborer A. E. Peterson was unwarranted
and without ,just and sufficient cause (System File D-22-79/MW-14-79).
(2) Section Laborer A. E. Peterson be reinstated with seniority,
vacation and all other rights unimpaired and he shall be compensated for all
wage lose suffered."
OPINION OF BOARD: Claimant was employed as a section laborer, assigned to the
section gang headquartered at Roper, Utah, under the supervision of Relief Foreman J. Lozano.. a
three years.
On March
15,
1979, he was notified to attend an investigation:
"...at 2:00 PM, Monday, March 19, 1979, develop facts and place responsibility, if any, in
connection with your alleged failure to comply with
instructions of assistant foreman and, allegedly being
insubordinate at approximately 8:30 AM, Wednesday,
March 14, 1979, at Roper.
"Your presence as a principal with a representative of your choice, if desired, is required.
"If you have any witnesses you wish to appear
is your behalf, please notify the Superintendent
promptly."
The investigation was held as scheduled, following which
claimant was notified on March 26, 1979, that he was dismissed from Carrier's
service. A copy of the transcript of the investigation has been made a part
of the record.
We have carefully reviewed the transcript of the investigation and
find that none of claimant's substantive procedural rights was violated. There
was substantial evidence in the investigation, including claimant's own statement,
to support the charges against the claimant. As part of the charges against the
claimant, he was accused of telling the Relief Foreman "to go to Hell."
Award Number 23371 page 2
Docket Number
MW-23436
In the investigation claimant stated:
"Yes I did that and then I thought that was.a
little bad....
~r
~t
"No, I shouldn't do what I did, but I did. I
am not lying about it. I did do it and I am sorry
about it, but I did do it."
The record also shows that the claimant did comply with the instructions of the Foreman, but the
Based upon the entire record, the Board concludes that discipline
was warranted; however., permanent dismissal was excessive. We will award that
claimant be restored to service with seniority and other rights unimpaired,
but without compensation for time out of the service. The claimant should
clearly understand.,
however,
that the purpose of this Award is to give him one
last chance to become a dependable and responsible employs of the Carrier, and
that further mayor infractions on his part will result in the permanent termination of his services.
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 sad the Employes involved is this dispute
are respectively Carrier and Employes within the waning 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 discipline was excessive.
__ ,
A W A R D _'_
Claim sustained in accordance with the Opinion. ~ ,~ ~~_ ' · -,
NATIONAL HAII.HUA1) AUJU:i'1Mhw !S(U_ - `.
I:y Order
of' 'I'h Lnl I).Lvision ~~--_-_,. - _
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 14th day of August 1y61.