Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27927
THIRD DIVISION Docket No. CL-28072
89-3-87-3-678
The Third Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF
CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10205) that:
CLAIM NO. 1:
(a) Carrier violated the Agreement at Chicago, Illinois, when it
assessed the personal record of T. H. Nelson with twenty (20)
demerits as result of formal investigation held on June 27, 1986,
and
(b) Carrier shall now expunge the twenty (20) demerits and all
relating correspondence from the personal record of T. H. Nelson.
CLAIM NO. 2:
(a) Carrier violated the Agreement at Chicago, Illinois, by assessing
the personal record of T. H. Nelson with thirty (30) demerits as
result of formal investigation held on July 24, 1986, and
(b) Carrier shall now expunge the thirty demerits and all relating
correspondence from the personal record of T. H. Nelson.
CLAIM NO. 3:
(a) Carrier violated the Agreement at Chicago, Illinois, when it
removed T. H. Nelson from service as result of formal investigation held on July 25, 1986, and
(b) T. H. Nelson shall now be reinstated to Carrier's service with
all rights unimpaired and compensated for all time lost from
August 14, 1986, forward.
In accordance with Circular No. 1 of October 10, 1934, as amended, which was
issued by the Board, the claims presented have been combined into one submission. Claims 1 and 2 are
arising from alleged incidents and investigated on June 27 and July 24, 1986,
respectively; Claim No. 3 protests the discharge of T. H. Nelson which resulted from investigation h
Form 1 Award No. 27927
Page 2 Docket No. CL-28072
89-3-88-3-678
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.
The docket herein consists of three disputes handled separately on
the property and combined into one submission to the Board, resulting in a
rather voluminous record. At the time of the occurrences giving rise to the
disputes herein, Claimant, with seniority date of September 27, 1973, was
assigned to a Rate Clerk position in Carrier's Customer Service Center,
Chicago, Illinois.
Claim No. 1 involves 20 demerits assessed against Claimant's record
following a formal Investigation conducted on June 27, 1986, in which Claimant
was charged with allegedly being asleep on duty and indifference to duty on
June 5, 1986. A copy of the transcript of the Investigation conducted on June
27, 1986, has been made a part of the record. Upon review, we find that none
of Claimant's Agreement rights was violated. There was substantial evidence
from two witnesses in the Investigation that Claimant was asleep while on duty
at approximately 11:30 A.M. on June 5, 1986. Sleeping on duty is considered a
serious offense, often resulting in dismissal from service. The discipline
assessed of twenty demerits was certainly not excessive or an abuse of discretion. The contention th
Claim No. 1 will be denied.
Claim No. 2 involves 30 demerits assessed against Claimant's record
following an Investigation conducted on July 24, 1986, in which Claimant was
charged with allegedly being insubordinate, quarrelsome, and vicious to the
Office Manager at 7:15 A.M., on July 11, 1986, in the use of profane language
during a telephone conversation. A copy of the transcript of the Investigation conducted on July 24,
find that the Investigation was properly conducted and that none of Claimant's
Agreement rights was violated. The Claimant, the Office Manager, and Carrier's Regional Manager of C
In the Investigation some question was raised by Claimant's representative as
to the order in which witnesses would testify. The Board has been cited no
rule on this issue and, in the absence of a rule, we consider that in onproperty disciplinary hearin
determine the order in which witnesses will testify. It has been held in
numerous Awards that on-property disciplinary hearings are not court proceedings; that strict rules
the same. There must be substantial evidence in support of the charge. The
"substantial evidence" rule was set forth by the Supreme Court of the United
States as:
Form 1 Award
No.
27927
Page 3 Docket
No.
CL-28072
89-3-88-3-678
"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion." (Consol. Ed. Co. vs
Labor Board 305 U.S., 197, 229.)
We have reviewed the evidence adduced at the Investigation of July
24, 1986, and find substantial evidence by Carrier's Office Manager and the
Regional Manager of Customer Service in support of the charge against the
Claimant. There were conflicts between the testimony of Claimant and the
other witnesses. However, 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.
On our review of the record we find no proper basis to disturb the
discipline imposed of 30 demerits. Claim
No.
2 will be denied.
Claim
No.
3 involves the dismissal of Claimant from service on August
18, 1986, following a formal Investigation conducted on July 25, 1986, in
which Claimant was charged with the misuse of Carrier telephones in making
personal long distance calls at Carrier expense on July 7, 8, 9, 10, 14, 15,
and 17, 1986, and failure to follow instructions on personal inbound calls
that he received on July 8, 9, 14, 15, and 17, 1986, at Carrier expense. We
have reviewed the transcript of the investigation conducted on July 25, 1986,
and find substantial evidence in support of the charges against the Claimant.
The record is clear that Claimant did use Carrier telephones in violation of
instructions and without permission of supervisory personnel. The record also
shows that Claimant had previously been cautioned or warned concerning unauthorized and improper use
warranted and, considering Claimant's prior disciplinary record, dismissal
from service was warranted. Claim
No.
3 will be denied.
The denial of Claim
No.
3 actually results in Claim Nos. 1 and 2
being moot, but as the claims were handled separately on the property, we
consider it proper to decide them separately at this level.
A W A R D
Claims denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy J. D
ol~'-
Executive Secretary
Dated at Chicago, Illinois, this 6th day of June 1989.