NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23699
(Brotherhood of Maintenance of Way Employes
PARTIES TO DLSPUrE: ( .
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Cook Ellis Johnson, Jr. was without dust and
sufficient cause and on the basis of unproven charges (System File 37-SCL-7979/12-39 (?9-26) J).
(2) Cook Ellis Johnson, Jr. shall be returned to service with
seniority and all other rights unimpaired and be compensated for all wage loss
suffered."
OPINION
OF BOARD: Prior to the occurrence giving rise to the dispute herein,
Claimant was employed by the Carrier as a cook, assigned
to Timbering Force working is the vicinity of Pearson, Ga., under the supervision
of Foreman W. J. Summer and Assistant Foremen I. L. Walden, having been assigned
to that force about two months.
According to the Carrier, the Foreman of the Timbering Gang received
numerous complaints from the men in the gang about the quality of the food that
was being served. There were tams cooks assigned to the torce and as the other
cook had bees with the force longer and there had been no complaints about the
meals he had prepared prior to Claimant joining the force, the Foreman instructed
the Claimant to assist in the kitchen, to bring the meals to the men is the field,
leaving the actual preparation of the meals to the other cook, who was junior
is seniority to Claimant. We have bees referred to no agreement rule providing
who will be a so-called chief cook and a second cook.
On March
8,
1979, Carrier's Division Engineer notified the Claimant:
"Reference is made to Assistant Roadmaster L. E. Wainwright's
letter to you dated March 6, 1979, in which you were charged
with violation of portion of Operating Rule G, which reads
as follows:
'The use of intoxicants, narcotics, sedatives,
stimulants or a derivative or combination of nay
I of these, when subject to call, when reporting for
duty, while on duty, while on Company property is
sufficient cause for dismissal,'
and also Rule
No.
16 in the Safety Rule Book, vdsich reads
as follows:
Award Number 231 Page 2
Docket Number MW-23699
'Employees on duty must not use or be under the
influence of intoxicants, drugs or anything which
may impair senses or alertness.'
Portions of Rule No. 18 .in the Safety Rule Book, which reads
as follows,:
'Vicious or uncivil conduct, insubordination or
concealing facts concerning matters raider
investigation will subject the offender to
dismissal.'
In this connection you will be granted a hearing in accordance
with the current Working Agreement in my office at 315 Plant
Avenue, Waycross, Georgia to begin at 1:30 P.M., Friday,
March 16, 1979. You may have representation if you so desire,
in accordance with the agreement under which you are employed,
and you may arrange to have present any witnesses who have
knowledge of this matter.
Your personal record file will be reviewed at this hearing."
The investigation was conducted as scheduled. A copy of the transcript
of the investigation, or hearing, has bees made a part of the record. Claimant
was present throughout the hearing and was represented.
i
The Foreman testified in the investigation, or hearing, that he told
the Assistant Foreman Walden:
"... to tell Johnson that Dixon was going to (be) the cook from
there on out cause the men were complaining about his cooking
and they were not complaining before he got there. So, I told
him that when they went in that afternoon, I went on put out
the water sad before I started to go home, I called Mr. Walden
and asked him was everybody in and everything okay, sad he said
yes. So when I go to work the next morning, I ask Mr. Walden
and he told me that he (claimant) said ha was not going to be
the fluakee cook that he was the oldest in seniority and that
he was sot coming out on the line of road and I told Mr. Walden
well we'll see. Well, at dinner he did not show up. Dixon
came back out on the line of road and Mr. Wainright (Assistant
Roadmaster) drove up about that time and I asked him to go
with me to the camps to see what was the trouble. We drove
up the camps, Johnson told us that he was not going to be the
flunkee cook, that he was the oldest man in seniority and that
he would call the Union. And before we left fry out there,
Walden also told us that he was drinking on the camp. And
when we got there after we asked him about why he wouldn't
come out there, he told us that he was senior man and he
was not coming out and we asked him about was he drinking
and he said yes he was drinking in his car, which measured
Award Number
23821
page
3
Docket Number
MW-23699
about 24 feet from the camp car. Then we went to the phone
at Axon and called you, called Mr. Cooper -
Q. Mr. Summer, did you personally tell Mr. Johnson the problem
that you felt like he was having as a cook.
i A. Yes, sir, I told him when me and Mr. Wainright arrived at
the camp.-and he told me then that he was the senior man and
he was not going out on line of road that he would call the
Union and see what he could get done.
Q. Did you personally instruct him as to what you want him to dog
Yea, sir, he told me that the kitchen was not my fob, that
that was his fob and I told him my fob exists from one end
of the camp cars to the other.
Q. While you and Mr. Wainright was at the camp car and you
questioned Mr. Johnson about the drinking and he admitted
that he was drinking in his automobile?
A. Yes, sir, he admitted that he was drinking in his
automobile. '
Q. Did you and Mr. Waixn·ight measure from the automobile to the
camp cars
A. Yea, sir."
Assistant Foreman Walden testified is part:
"... So when I was there at camp that afternoon, Mr. Johnson,
I told him what was Mr. Summer told me to tell him. Mr.
Johnson say he was the senior cook, he was the oldest man,
and that Mr. Sumner wanted him to come out on the truck the
next day. So Mr. Johnson told me that I could take my money
and go to the restaurant and eat. So I told him that Mr.
Summer said for him to come out there on the dinner truck
to serve dinner. He said he not going to go anywhere, if
he go out there his mama is a - , those are the words he
told me, and the next day Mr. Johnson did not coma out
there and I asked Mr. Leonard, the second cook, where was
Mr. Johnson. He said he wasn't coming anywhere because
he's the oldes man. So that time I told Mr. Sumner about it.
I Q.
Mr. Walden, was you present on the camp cars on the night of
March
5,
which would be Monday night?
l A. That is correct.
Q.
Did you observe or see anything actions or anything that Mr.
Award Number
231
Page
4
Docket Number
Nb1-23699
Johnson was doing on that night?
A. Yes, sir, on that same night, I was standing at one end of
the camp car, the kitchen, peeping out looking out. Mr.
Johnson and two mare other men, they weren't no Railroad
employees. He was sitting on the step with one leg crossed
like I got mine now, half bottle in his hand with a, in a
bag, half way fold down. It was a whiskey bottle. He was
drinking out of it. And I showed Mr. Leonard Beecham to him."
The Assistant Roadmaster (Mr. Waiuright) is answer to a question from
the General Chairman, stated:
"Q. Do you have any specifics as far as the insubordination.
What did he actually do that you feel that he was being
insubordinate?
A. Well, not following the instructions that the Foreman had
relayed to him, and he said he didn't have to follow those
instructions, that he was the oldest man, he didn't have to
do that."
In the investigation the Claimant denied drinking on Company property.
He admitted drinking is his automobile as he was leaving the property, but
contended that it was not on Carrier's property. He also denied refusing to
comply with instructions concerning the cooking and delivery of food to the men
in the field, but simply said that he would get the matter clarified.
There were various conflicts in the investigation as between Claimant's
statement and the statements of others; however, it is, well settled that this
Board does not weigh evidence, attempt to resolve conflicts therein, or pass upon
the credibility of witnesses. Such functions are reserved to the hearing
officer.
Claimant's prior record, which has been made a part of the record, is
far from satisfactory. It shows a thirteen day suspension in
19'(1,
a dismissal
in
1972,
re-entry to service is
1973
and a letter of warning for not protecting
his assignment is
1974.
Based upon the entire record, the Board finds that Carrier's dismissal
of Claimant was not arbitrary, capricious or in bad faith. There is no proper
basis for this Board to interfere with the discipline imposed.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor Act, .
as approved June
21, 193+;
Award Number 231 Page
5
Docket Number hb1-23699
That this Division of the Adjustment Board has Jurisdiction aver the
dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Third Division
I
ATTEST: Acting Executive Secretary
j National Railroad
Adjustment
Board
By
Rosemerie Bra - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of March
1982·
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