Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29241
THIRD DIVISION Docket No. CL-28896
92-3-89-3-400
The Third Division consisted of the regular members and in
addition Referee William E. Fredenberger, Jr. when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Texas Mexican Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10388) that:
1. The Carrier violated the Rules Agreement effective June 1, 1972,
as amended, when they arbitrarily suspended Mr. Carlos M. Vara, Laredo, Texas,
from service. That the Company displayed a complete and utter abuse of discretion; denied him a fair
unwarranted discipline and failed to allow him a fair lines of appeal.
2. The Company shall be required to reimburse Carlos M. Vara the
amount equal to all wages lost; restore all agreement rights he was deprived
of during his suspension period, including but not limited to health and
welfare coverage; and clear his personal record of any mention of this alleged
disciplinary incident."
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.
On June 2, 1988, Claimant was working as Cashier in the Carrier's
Laredo, Texas, freight office with hours from 9:00 A.M. to 6:00 P.M. Claimant
also was the Organization's Division Chairman in which capacity Claimant dealt
with the day-to-day administration of the schedule Agreement between the
Organization and the Carrier.
Claimant entered the freight office at approximately 8:40 A.M. When
the freight office Supervisor asked Claimant what he was doing in the freight
office before starting time, Claimant replied that he was tired of the Supervisor allowing a freight
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begin work early and stay late. Claimant's comment apparently provoked a
thirty-second exchange between Claimant and the Freight Agent which ended in a
loud argument. The Supervisor intervened. Claimant then told the Supervisor
that the Supervisor did not know what he was doing and followed the comment
with a statement in Spanish which when used in that context meant that the
Supervisor was worthless. The Supervisor informed Claimant that if he had a
Claim concerning the matter he should file it. The Supervisor then instructed
Claimant to leave which he did, returning at his starting time. Other employees who worked in the fr
On June 3, 1988, the Carrier notified Claimant to appear for formal
Investigation on the charge of violating various Rules. The Investigation was
held on July 27, 1988. By letter of August 3, 1988, the Carrier notified
Claimant that he was suspended for two weeks as a result of the Investigation.
The Organization raises a number of procedural objections to the
Investigation and discipline.
The Organization maintains that the transcript of Investigation
reveals prejudgment by the Carrier. Specifically, the Organization accuses
the Hearing Officer of improper questioning and issuing statements prejudicial
to Claimant. Our review of the transcript of Investigation does not support
the Organization's contention. While some questions from the Hearing Officer
were leading to some extent, that appears to have been the result of inartful
wording rather than a conscious effort to build the record against Claimant.
Claimant in particular was afforded great latitude in questioning witnesses,
and several of Claimant's questions which properly were objectionable as statements or testimony by
find no statements by the Hearing Officer to be of such nature as charged by
the Organization. Accordingly, we cannot agree with the Organization that the
Carrier denied Claimant a fair and impartial Investigation.
The Organization maintains that Claimant was denied a meaningful appeal. The Organization emphas
to the fact that the Carrier officer who brought the charges against Claimant
also was the Carrier officer who handled the first level of appeal by Claimant. The record reveals t
performing a variety of functions, altered the appeal process in order to eliminate officers who tes
The Board has ruled that it is not a reversible procedural error for the
Carrier officer who prefers charges against an accused to act as the officer
in the first step of the appellate process. See Third Division Awards 25149,
25863 and 27610. Accordingly, we find no basis for the Organization's position on this point.
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The Organization accuses the Carrier of being arbitrary and capricious as well as abusing its di
case reveals no bases for these contentions. We find no such aspects to the
Carrier's handling of this case.
The Organization maintains that the Carrier disciplined Claimant for
his union activities. The record does not support the Organization's contention. Claimant's behavior
was witnessed by other employees. The Carrier's belief that Claimant's behavior disrupted the work f
Turning to the merits, the Organization maintains that the discipline was based upon inconclusiv
cannot agree. All participants in the argument on June 2, 1988, in the
freight office testified at the Investigation as did other employees who
witnessed the argument. The fact that Claimant's version of the argument
differed somewhat from the versions testified to by others is not significant.
It is the Carrier's obligation to resolve testimonial differences and credibility conflicts. In the
product of some improper motivation by the Carrier or that it conflicts with
substantial objective evidence, the Carrier's credibility determinations will
not be disturbed. We find no basis upon which to disturb the Carrier's credibility determinations in
The Carrier's Vice President and General Manager also testified at
the Investigation. He recounted previous incidents involving Claimant similar
the one at issue in this case. It is a fair characterization of that individual's testimony that he
office before the starting time of his position and not to disrupt the work of
employees in that office. Claimant's conduct on June 2, 1988, was in direct
violation of that order and constituted insubordination. We also believe that
Claimant's comments directed toward the freight office Supervisor constituted
insubordination. Accordingly, we must conclude that the record in this case
substantiates the charge of insubordination.
We cannot agree with the Organization that the discipline assessed
was harsh or excessive. Even though Claimant has many years seniority and
worked in the freight office without incident for many years, the fact remains
that Claimant had been disruptive of the work force in the freight office. A
warning to discontinue such activity apparently had no effect. In our view, a
two-week suspension to impress upon Claimant the necessity to correct his
errant behavior was not inappropriate.
In the final analysis we find no basis upon which to disturb the
discipline in this case.
A W A R D
Claim denied.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 18th day of May 1992.