NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25943
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The five (5) days of suspension imposed upon Track Laborers C.
C. Dixon, L. L. Allen and J. C. Harris for alleged failure to follow
instructions and failure to devote themselves exclusively to their duties on
June 10, 1983 was without just and sufficient cause and on the basis of
unproven charges. (Carrier's Files 013.31-282, 013.31-283 and 013.31-281).
(2) The claimants' records shall be cleared of the charges leveled
against them and they shall be compensated for all wage loss suffered."
OPINION OF BOARD: Track Laborers C. Dixon, L. Allen and J. Harris, Claimants
in the case at bar, were assigned to Extra Gang XG500.
They were given explicit instructions by their Foreman on the amount of rail
to be laid and the manner in which to set spikes. On June 10, 1983, all were
handed letters of warning that they were "obligated to follow instruction(s)
given . . . by (the) foreman" and that they had failed to do so. On July 13,
1983, each Claimant was ordered to attend an investigation of alleged failure
to follow instructions and to devote himself exclusively to his duties. Each
was found guilty and suspended for five (5) days.
A review of the record finds issues, arguments and material
(including the Claimants' past discipline) which was not made a part of the
record on property and is therefore too late for consideration by this Board
when raised in Ex Parte Submissions. The on-property issues are clear. The
Organization maintains Claimants were not guilty and the Carrier which had
burden of proof, failed to carry its burden. The Carrier maintains a record
which proves the Claimants guilty by the testimony of the Foreman with
substantiation by the Assistant Roadmaster.
With regard to the merits of the case at bar, the letter of June I'~,
1983 given to the Claimants by the Foreman states, in essence, that Claimants
should speed up their work. The Foreman states that Claimants were slowing
down the production of the gang by talking and failing to follow instructions.
The Assistant Roadmaster was called back to observe the Claimants and states
of his observations that "there was no way any supervisor could put up with
the way they were that day, gathered around talking- -they were actually bull
corning around more than they were setting spikes."
The Claimants maintain that they were "holding up no work" and that
they were not guilty. This Board has reviewed the record carefully and finds
that there is substantial evidence to support a conclusion of guilt.
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Docket Nubmer MW-25943
Claimants were clearly instructed to speed up their work. The record clearly
documents that they did not speed up, that their work productivity "was the
same" after the warning. Although Claimant Harris denies talking to anyone
while setting spikes, Claimant Dixon admits talking with Harris. In the whole
of the case, Carrier arguments prevail as there is substantial evidence to
satisfy Carrier's burden of proof that the Claimants are guilty as charged.
Substantial evidence in this industry has been defined "as such relevant
evidence that a reasonable mind might reach a conclusion of guilt" (Consol.
Ed. vs. Labor Bd. 305 U. S. 197, 229). Given the record as developed on
property, this Board cannot conclude that Carrier's action is arbitrary,
capricious or an abuse of discretion. This Board will not disturb Carrier's
action in this case.
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest.
r ,
Nancy J. De r - Executive Secretary
Dated at Chicago, Illinois, this 14th day of March 1986.