Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27754
THIRD DIVISION Docket No. MW-27028
89-3-86-3-63
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(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 discipline imposed upon Trackman W. Powers for alleged
violation of Rule 'I' and Rule 'K' on September 16, 1984 was without just and
sufficient cause (System File NEC-BMWE-SD-1114D).
(2) The claimant's record shall be cleared of the charges leveled
against him and he shall be compensated for all wage loss suffered."
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 waived right of appearance at hearing thereon.
Claimant entered Carrier's service on July 5, 1985, and at the time
of the instant dispute held the position of Trackman in the Track Laying
System on Carrier's Northeast Corridor. Claimant was charged with insubordination and violation of C
September 16, 1984, when he allegedly refused to acknowledge his Foreman's
questions and walked away despite the Foreman's request that he stay to discuss the matter. An inves
According to the Foreman to whom Claimant was allegedly insubordinate, he twice asked the Claima
group. Claimant did not respond until he was asked a third time, when he
answered, "I'm standing here just like you." After that, the Foreman testified Claimant walked off t
Claimant refused and continued to walk away. Claimant was subsequently suspended from service pendin
Form 1 Award No. 27754
Page 2 Docket No. MW-27028
89-3-86-3-63
Claimant at the hearing denied that he was verbally or physically
insubordinate. Moreover, he denied leaving the track area and maintained that
he fully complied with the instructions of his Foreman at the time in question.
In our review of this case, we concur with Carrier's position that
there is substantial evidence in the record to support the charges against the
Claimant. It has been well-established that the reconciliation of directly
contradictory testimony and establishment of witness credibility is properly
the function of the Hearing Officer and not the Board who reviews the appeal.
On that basis, we conclude that there was sufficient evidence to warrant the
conclusion that Claimant was insubordinate.
The remaining question is whether the quantum of discipline assessed
was reasonable and proper. While we are not unmindful of the serious nature
of the charge of insubordination, we must, however, conclude that mitigating
circumstances are here present which warrant the reduction of the penalty
imposed. Claimant's past record, though his tenure with the Carrier is of
relatively short duration, is excellent. Moreover, the record suggests that
there was no preconceived ill will on the part of Claimant when he was insubordinate; rather, he may
find it would be reasonable to reduce the twenty-eight (28) day suspension to
a twenty (20) day suspension, and Claimant shall be compensated accordingly.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
~/~
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.