Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27610
THIRD DIVISION Docket No. CL-28042
88-3-87-3-860
The Third Division consisted of the regular members and in
addition Referee W. F. Euker when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10220) that:
1. Carrier violated the Agreement Rules, particularly Rule 21, when
it applied the supreme penalty of dismissal against Mr. Robert Koppelman, Crew
Dispatcher, Crew Management Center, account formal investigation which began
on January 7, 1987 and concluded on date of January 15, 1987, and
2. Carrier shall now be required to return the Claimant Robert
Koppelman to the service of the Carrier with all rights restored, his record
be cleared of the charges and the discipline assessed him and that he be paid
for all time lost as well as for all monies he may have spent for health
benefits he would have otherwise received under the group policies now in
effect, beginning with the date of January 5, 1987, the date he was held out
of service and continuing until he is restored to the service of the Carrier."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
This is a discipline case where Claimant's discharge was appealed
after an investigation wherein Claimant was charged as follows:
CHARGE: Your responsibility in connection
with your tampering with Passenger coach, being
quarrelsome, disorderly conduct, and violation
of Rule G at about 8:50 p.m., Friday, January 2,
1987, while you were on Company property in the
Chicago Passenger Terminal.
Form 1 Award No. 27610
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88-3-87-3-860
The incident giving rise to the foregoing charge occurred on Carrier
property at a time when Claimant was not on duty. The Organization contends,
for that reason alone, the Carrier's discipline should be reversed. In addition, the organization as
taint the Carrier's decision, including among others, an imprecise charge; the
failure to allow Union representation at the preliminary questioning of Claimant; and the lack of in
Dealing first with the preciseness of the charge, we find no evidence
that Claimant or his representative were unaware of the true purpose of the
investigation and indeed Carrier granted Claimant's representative a recess to
further prepare his defense.
Next we consider the Organization's challenge that Claimant was not
afforded the opportunity to have his Representative present at the pre-investigation discussion, whe
Carrier's equipment, with the confrontation between Claimant and several Carrier supervisors and the
420 U.S. 251 (1975) as authority. This argument has been previously considered and rejected by this
was then appealed to the U.S.D.C., Northern District of Illinois and affirmed
on December 23, 1982. The major emphasis for the Board's rejection of this
argument in Third Division Award 22431, was the absence of the controlling
N.L.R.A. language in the governing Railway Labor Act. Another important distinction in this case, is
provides for the right of representation at the investigation or trial. The
Agreement is silent on the question of pre-trial investigatory representation.
In any event, there is no clear evidence that Claimant requested his representative at the initial c
The Organization skillfully contends that Claimant was deprived of
independent review of his case because the Carrier Officer who signed the
discipline letter was also the same officer to whom the Organization was
required to appeal under the discipline procedure. The Organization cites
Third Division Award 24547 in support. We concur with the Board's views
expressed in Third Division Award 24547, when the multiplicity of roles played
by an appeals officer expresses the final decision on Claimant's case. Here,
Claimant's appeal was carried to the next officer who presumably reviewed the
matter de novo. See Third Division Award 25149.
On the merits, the fundamental question at issue is whether there was
substantial evidence in support of the charges, and whether the totality of
Claimant's conduct, if proven, merits discharge. Concerning the evidence, we
have carefully reviewed the 76 page Transcript plus Exhibits and we are persuaded that substantial e
The evidence reveals that Claimant was given the opportunity to walk away from
Form 1 Award No. 27610
Page 3 Docket No. CL-28042
88-3-87-3-860
this confrontation on at least three occasions, but for reasons best known to
himself, he refused. Initially he referred to himself as a "xxxx drunken
employe," and when the Stationmaster was then brought into the discussion, the
Claimant made no effort to depart the premises, but insisted on being frisked.
After the Carrier's police officer arrived and attempted to defuse the situation, Claimant continued
had no recourse, but to place Claimant in custody, call the Municipal police
and charge him with disorderly conduct.
Parenthetically, the fact that the disorderly conduct charge was
later dismissed by the Court, if true, is not relevant to the charges at the
Carrier's investigation, for as this Board has noted in countless decisions,
the quantum of proof is different, just as the rules for excluding evidence
are dissimilar. See Third Division Award 20781 involving the same parties.
The totality of Claimant's conduct in this case is not to his credit.
His chameleonic attempt to repetitively change from employe status to nonemploye (commuter) status w
only served to create contradictory testimony on his behalf. By contrast, the
testimony of Carrier's witnesses, for the most part, was clear, consistent and
unrebutted. Consequently we feel the charges were proven. See Third Division
Award 25838.
However, in view of the complete record, it is our conclusion that
Claimant should be given a "Last Chance" to prove to the Carrier and the Organization, he is worthy
reinstated with seniority and all other rights unimpaired, but without backpay
or other monies claimed in Paragraph 2 of the Claim, subject to any procedures
which are applicable to employes who may have problems with alcoholic beverages.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
At test:
a,,
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of November 1988.