NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number
1KS-24596
(Herbert L. Murray
PARTIES TO DISPUTE
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "I would like to serve notice, that I would like to appeal
my dismissal from Conrail on Sept. 21,
1981.
I do not want the B.M.W.E. to represent me before the Railroad
Adjustment Board or before a Public Law Board. I will personally handle any
further proceedings or appeals."
OPINION OF BOARD: Claimant was employed as a Maintenance of Way truck driver.
He was dismissed on September
18, 1981,
after having been
found guilty of the following offenses:
"1. Insubordination wherein you did not perform service as
instructed by Assistant Track Supervisor, L. R. Stillson,
at approximately
1:30
PM on August
17, 1981,
at Cadiz,
Ohio.
2. Absent without permission from your assigned work location
at Cadiz, Ohio from
1:36
PM to
3:30
PM on August
17, 1981.
3.
Failure to protect your position at Cadiz, Ohio, from
1:30
PM to
3:30
FM on August
17, 1981.
4..
Falsification of reporting your time on August
17,
1981.
5.
Conduct unbecoming of an employee when you assaulted and
threatened Track Supervisor, J. A. Madoni, at approximately 6:10 PM on August
17,
at Uhrichsville, Ohio."
A transcript of the trial, or investigation, conducted on September 14,
1981,
prior to Claimant's dismissal, has been made a part of the record.
The Claimant contends that the Agreement was violated by the Carrier
preferring multiple charges in one notice. The Board finds no proper basis for
such contention. All of the alleged offenses relate to one single occurrence.
All concerned Claimant's alleged improper behavior and his failure to properly
perform his duties on August
17, 1981.
Award Number
24276
Page
2
Docket Number
MS-24596
A study of the transcript of the hearing, or trial, shows that it
was conducted in a fair and impartial manner, and that substantive evidence was
presented in support of the charges. While there were conflicts in some of the
testimony, it is well settled that this Board will not weigh evidence, attempt to
resolve conflicts therein, or pass upon the credibility of witnesses. Such
functions are reserved to the hearing officer.
In his submission to the Board, Claimant complains that Assistant
Supervisor Stillson was not present at the hearing, and contends that he was
deprived of his right of cross examining his accuser. The Carrier points out
that during the course of the hearing the conducting officer stated that Mr.
Stillson was too ill to attend the proceedings, and that his Supervisor, W. R.
Little was available for questioning; that no objection was made at the time of
Mr. Little's presence in lieu of Mr. Stillson, nor was a postponement requested
so that Mr. Stillson would be available. It is well settled that if exceptions
are to be taken as to the manner in which a hearing is conducted, such exceptions
must be taken during the course of the hearing; otherwise they are deemed to be
waived.
So far as offense No.
5
is concerned, there was substantial evidence
presented at the hearing that Claimant did assault and threaten a Track Supervisor
about
6:00
P.M., August
17, 1981,
at Uhrichsville, Ohio. The Claimant points out
that he was exonerated in cost of assault charges arising out of this occurrence.
The Board has frequently held that a Carrier's right to discipline an employe is
unrelated to the actions of criminal or civil courts. In disciplinary proceedings
strict rules of evidence do not apply and the burden of proof is not the same as
in criminal or civil courts. _
The record before the Board also shows that Claimant was previously
dismissed from Carrier's service on June
30, 1977,
for misuse of Company credit
card in purchasing gasoline for his personal automobile, and was restored to
service without pay for time lost by Award
45
of Public Law Board No.
2203,
dated January 11,
1980.
Based on the record before the Board, there is no proper basis to
disturb the discipline imposed by the Carrier.
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
24276
Page
3
Docket Number
MS-24596
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUST~IENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By -
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this
31st
day of March
1983.