PARTIES TO DISPUTE: ( Freight Handlers, Ez6presa and Station Employes



(a) 0%xrier violated the Clerks' Agreement at Argentine, Kansas, when it removed L. &. Stinnett from its service as a result of investigation held on January 17, 1980.

 (b) L. S. Stinnett shall now be reinstated to G!Lrrier service with all rights unimpaired and compensated for all monetary loss suffered on his Rate Clark position at Argentine as a result of being rerraned from service.

 (c) In addition to the movies claimed. L. &. Stinnett shall now receive ten per cent (lO%) interest on movies claimed, such interest to be compounded on each earl every pay period from January 17s 1980 forward for the period of time Claimant is held out of service (40 hours per week).

 OP>ZTIOft Cf HOARD: The basic facts is this case are not is dispute. Claimant
 vas working as a Rate Clerk is (terrier's Station Department
 when he became engaged is an argument with a fellow employe concerning the use
 of a company telephone which they shared. The argument came to be of each
 intensity that it attracted the attention of Carrier officials several offices
 removed from the scene of the controversy, and brought the work of other
 employee in the immediate vicinity to a standstill. When a supervisor of
 the disputants attempted to intervene and have then go back to work, Claimant
 continued his harangue, telling the supervisor: "Ed...you don't know what's going on you have been on vacation, you go back and sit down." When the super
 riaar's continuing efforts proved unsuccessful in having tea Claimant return
 to work, it wan necessary for the supervisor to bring Claimant to the Manger,
 and then to the office of the Regional Director of the Revising Department is
 farther attempts at calming the Claimant. Although discussions between the
 Claimant (in the company of a Brotherhood representative) affil the several
 fhrrier supervisors sad officials did not significantly alter his attitude,
 Claimant was permitted to return to work. A short tine niter being back at
 work, and when the supervisor who had first attempted to calm the Claimant
 eras returaiag to his desk, Claimant approached him and made threatening re
 marks to him, stating, according to the supervisor:


        "Lloyd come up to me and he says Ed he says I am going to beat the (expletive deleted) out of yon. I'm going to catch you either in the parking lot or somewhere else and he said I've had bigger guys than you."


The Claimant does not deny having node such remarks to the supervieasp but refers to them as "an idle threat." 2he supervisor did not consider the remarks to be merely an idle threat. He promptly reported them to his superiors, and at the formal hearing also testified to having received threatening telephone calls the next evening while at how., a matter which he had likewise immediately reported to his supervisor nod the local police. It was the supervisor's contention Claimant had aerie the calls to his homey asserting he recognised Claimant's voice from peat conversations with him over the telephone and recognised the threats bein expressed to him at the office. A witness to the office threat also did not consider the remarks to represent an idle threat. When asked at the hearing whether Claioant's remarks were not more the supposedly acceptable vernacular of "yard office talk," or more in the nature of "a yoke," the witness replied: *Not really., not la that kind of tome...I believe there was more thaw that in Mr. Stinnett's voice bemuse he was upset." Further., that Claimant is a volatile person is demonstrated by his ova testimony at the hearing. In this regard, we have taken special note of the following colloquy, with the initial question being asked by the herring officer:

          "Q. Mr. Stinnettj, if you had the whole thing to do over do you think it could have been resolved at your desk on the initial approach of Mr. Warkentina!


        A. Now I think it can after all this come about.


        Actg. Supt. Wells - Mr. Clark?


        REPRESENTATIVE J. R. CLARK QUESTIONS RATE CLERK

        Le E. STINNWTP:


        Q. Mr. Stinnett., I would like to explore your answer to the last question ,just a little bit. You say nor you.-think the thing could have been resolved since it all came out. Was your purpose or do yon think that now everyone concerned world take a little different approach., Is this your... (Mr. Clark is interrupted.)


        A. No. With me it was the attitude that sometime I can cane to work and be is a fantastic mood and can work an hour or an hour and a half cad someone can really spoil it for me and blow my whole day. It rally can."

                    Axard Number 24181 Page 3

                    Docket Number CL-2389T


The above facts and circumstances notvithatan3lag$ it is the Brotherhood's position that certain procedural errors committed by the Carrier call far the claim to against him; the Claimant was denied a fair and impartial hearing; and., by calling the Brotherhood representative who had been at the office meeting as a witness for the Carriarj, the Carrier had prevented Claimant from haying the representative of his choice represent him at the formal hearing. In additions the Brotherhood alleges the discipline administered was not reasonably related to the circumstances involved and was so harsh sad cruel as to amount to a gross breach of managerial discretion.

 A careful exsmiaetion of the voluminous record fails to support the contention Claimant had not been afforded his fundamental rights to due process. The hearing notice was specifically precise and clear. It properly notified Claimant of the charge, fully apprising of the nature and purpose of the hearing. A rather extensive hearing transcript attests to Carrier's objectivity in ascertaining all pertinent facts. In addition to testimony of the Claimant and the second employs who had been engaged in the initial arguments there is testimony of nine witnesses who had been called either by the Carrier or the Brotherhood. We are satisfied Pram our reading of the transcript that the hearing was conducted fairly and Impartially,, and that Claim P~ and cross-examine each of the witnesses*

 In respect to the protest Claimant had been denied benefit of a Brotherhood representative of his choices the applicable role provides only that at as investigation an employs "may be assisted by his duly accredited representatives." It does not stipulate a representative of his first choice nor may the contract be so interpreted to mesa or imply such right. Further, as concerns Carrier's action in calling as a witness at the hearings the representative who Claimant alleges was his first choice of a representative to zapsroseat him at the forml hearing, we believe that Carrier had acted is a proper manner* Thin representative had. been present at the point meeting in furrier's ofticej, sad. had,, according to testimony of other witnesses,, told Claimant at the meeting that he should follow instructionq_And not quarrel or be argumentative with other employee. Under the circumatanceas we fail to comprehend the basis far the Brotherhood's argument that Claimant was denied a sepreaentative of his choice. We say this in the further belief that had the Claimant and the Brotherhood so desired,, the representative could have appeared at the hearing as both a witness affil the Claimant's representative. In any events a revi.err of the record does ant show that Claimant was deprived of representation, and the Brotherhood representative who did represent Claimants although he may not have been the Claimant's first choice, fully sad competently represented Claimant at the hearing.
                    Ibward Number 24181 Page 4

                    Docket Number M-2389T


As to the discipline as imposed there is no doubt Claimant displayed an insubordinate and hostile attitude towards his supervisor is threatening him with bodily harm. Further., by his own testimony, Claimant demonstrates he has a volstive disposition subject to sudden emotional demonstrative swings. Certainly,, under the circumstances of records it cannot be said that Carrier was arbitrary or unreasonable in dismissing the Claimant from its service.

 FINDINGS: The Third Division of the Adjustment Board, neon the whole record
        and all the evidences finds and holds:


        That the parties waived oral hearing;


That the (8rrier earl the Employee involved in this dispute are respectively (terrier affil Employee within the meaning of the Psilvay Isbor Acts as approved June 21, 1934;

 That this Division of the Adjust meat Bawd has jurisdiction over the dispute involved herein; affil
        That the Agreement eras not violated.


                      A W A R D


        Claim denied.


                          RATIO?:AL RAILROAD AL1TU5glENT BOARD

                          By Order of Third Division


ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Breach - Administrative Aas Stan


Dated at Chicago., Illinois, this 28th day of February 1983.
                                    RE C EI VEo


                                  ,'.r 1 - _ .


                                `. .C'6~c ~ V y:

                                Office