NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26491
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)( Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Foreman B. H. Matthis for alleged violation of
Rule 'I', was arbitrary, capricious and without just and sufficient cause
(System File NEC-BMWE-SD-808 D).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record cleared of the charge leveled against him and he
shall be compensated for all wage loss suffered."
OPINION OF BOARD: Claimant commenced service with the Carrier on March 30,
1977. On February 9, 1984, the date of the incident involved in this matter, Claimant held the p
Claimant and the organization do not dispute the basic underlying
facts in this matter as exhibited by the Investigation Transcript. As a
result of Claimant's job performance, Claimant's Supervisor, Track Supervisor
P. Pdamovich, preferred charges against Claimant due to the alleged non-completion of a job where pl
and insulation was left on the ground adjacent to a job site.
At approximately 4:10 P.M. on February 9, 1984, in the Carrier's office, Claimant approached Ass
asked Hammond for the identity of the individuals who preferred the charges
against him. Hammond responded that Claimant's Supervisor had done so. Claimant kept repeating "I di
charges against me." Claimant threw down his keys and then lunged towards Hammond and stated "I'm ol
to?" According to General Foreman M. Rossiter, Claimant told Hammond that he
was going to "knock [your] f------ head off." At this point, M/W Foreman R.
Gallahger, got between Claimant and Hammond and attempted to calm Claimant
down. Claimant told Hammond that he was "going to beat [your] ass." Claimant
then stated "I know who brought charges against me, you and him," referring to
Hammond and Rossiter. Hammond told Claimant that he Aorked nights and knew
nothing about the charges. Claimant responded, "hbll, I'll find out. I'll
get my gun and I'll shoot all of you and then I'll find out who brought .
charges against me." Claimant then left the office.
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Docket Number MW-26491
At approximately 4:35 P.M. on the same date, Claimant approached Adamovich in the General Foreman's
Claimant repeatedly asked Adamovich why every time that he turned around Adamovich was serving Claim
the job that lead to the most recent charges, Claimant picked up a telephone
and washed it on the floor, stating that he "was tired of this sly-." Claim
ant became very irate and was shouting. Claimant kept stating that Adamovich
was harassing him, and as Adamovich was putting up his arms in an effort to
calm Claimant down, Claimant began taking mock swings at Adamovich. M/W Foreman M. Holland, and shor
Claimant away frcm Adamovich and further attempted to calm Claimant down. In
their efforts to calm Claimant down, Holland and Gould lifted Claimant off the
floor. During the ensuing struggle, Claimant was able to get on top of a desk
and was swinging wildly. Claimant proceeded to punch a hole in one of the
window panes behind the desk. Holland and Gould were then able to confine
Claimant to a corner. Claimant's hand was bleeding severely and it was necessary to have twelve stit
approximately ten minutes. Adamovich called the C & S Trouble Desk and asked
them to call the Carrier's police. Assistant Track Supervisor K. Webb then
arrived. Claimant then told Webb "don't laugh; I'm going to get your fat,
f------ ass too." Claimant next turned to Adamovich and stated "I'm going to
get your little ass too". According to Webb, he asked Claimant what the problem was and while being
then lunged towards Webb.
Claimant then got in his van to drive to the local hospital for medical attention. Claimant drove hi
by another witness, Safety Engineer M. Pollick, with tires spinning so as to
be "out of control." Inabb had to move out of Claimant's way in order to avoid
being struck.
Claimant stated at the Hearing that in his state of mind at the time
of the incident:
"There is very little that I am aware of that happened
throughtout that incident. I could attribute it to
temporary insanity. I feel that I have no legal explanation for the events that took place. I
to apologize to all parties concerned with the incident.
If I have missed someone, I would at this time like to
extend my apologies to all concerned. Somewhere along
the line, maybe, I got caught up with a lot of emotional
problems I have right now. I am right in the middle of
buying a house, which I hope to have within the next few
weeks. I also started arrangements for a wedding in September to someone very close to me, naturally
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Docket Number MW-26491
,r
That's my only defense, or whatever, to these charges. I
feel as though it is not necessary to go on with a trial
of this magnitude because of that; because what can I
possibly say? How many times can I say I'm sorry? That's
the first time in my life I have ever exploded to that extent. I don't know why I blew up like that.
you know, different things trigger different things. People
let their own hostilities come out in different ways. If I
had been in my own state of head, it probably never would
have happened. I pride myself on controlling my temper to
an extent, but it got away from me.
There's nothing I can do to change what's happened, other
than to say I'm sorry."
Claimant asserts that he does not own a gun. However, Claimant holds
a green belt in karate and has trained in karate for twelve years.
After Hearing on February 14, 1984, Claimant was discharged for violating the Carrier's Rules of
prohibit quarrelsome or vicious conduct, use of boisterous, profane or vulgar
language as well as violence or threatening or interfering with other employees.
As earlier noted, the organization does not really dispute that the
incidents took place as alleged. However, the organization argues that the
discipline imposed was excessive. 4%)e have carefully reviewed the record and
have taken pains to detail the conduct attributed to Claimant. Inasmuch as
there is no real dispute that the conduct attributed to Claimant in fact occurred, our role in this
discharge under the circumstances was arbitrary, capricious, discriminatory or
an abuse of discretion. After a review of the incidents, we cannot make such
a finding as the organization could have us do.
This is not a case where the misconduct was an employee's brief loss
of rationality resulting in a relatively harmless outburst attributable to emotional pressures on th
that involved not only the use of profane and abusive language, but rose to
the level of verbal threats to several employees including the threat of use
of a gun and actual attempts at physical attacks upon fellow Supervisory employees including the att
activities resulted in the destruction of property. We are quite mindful of
Claimant's expressed contrition for the events, the need for rehabilitative
discipline as opposed to discipline in the nature of retribution and, although
disputed, vie shall assume for the sake of argument that Claimant's past record
was relatively good. However, under the circumstances of this case, and even
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Locket Number MW-26491
further considering Claimant's length of service, those factors do not mitigate the gravity of C
attacking other employees who Claimant thought questioned Claimant's job performance. To award Claim
risk to other employees in the future should the circumstances again be present to cause a similar l
find nothing in the record to justify a conclusion that the Carrier's decision
on the amount of discipline was arbitrary, capricious, discriminatory or an
abuse of discretion.
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:
Nancy J. r Executive Secretary
Dated at Chicago, Illinois this 24th day of November 1986.
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