Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32050
Docket No. MS-32549
97-3-95-3-457
The Third Division consisted
of
the regular members and in addition Referee
Hyman Cohen when award was rendered.
(Luellan J. Russell, Jr.
PARTIES TO DISPUTE:
(Florida East Coast Railway Company
,STATEMENT OF CLAIM:
"Wrongful dismissal from the Florida East Coast Railway for being
wrongfully charged with `conduct unbecoming an employee
of
the Florida
East Coast Railway by reason
of
entering an altercation with Trainman
Felipe Heng on March 7, 1995, when infact (sic) Mr. Heng caused the
altercation by committing a "hit and run" and later calling me a ... and
also stating that he "had something for me, which I truly believe was a
"gun
I was also charged with `exposing a firearm, which FEC Railway
"assumed" I obtained from my personal vehicle, located on Company
property, in an "apparent attempt" to inflict bodily harm to a fellow
employee.' However, I never a:posed a firearm, I never obtained a
firearm from my vehicle and I never made an `apparent attempt' to inflict
a fellow employee, this being Mr. Heng, with bodily harm. These charges
were only based on assumption and are untrue.
I feel that the entire investigation was conducted to find fault to
discharge me from the FEC Railway. Meanwhile Mr. Heng, who is
`Hispanic' still remains employed with the Florida East Coast Railway,
due to the fact that he held a higher position than I. The truth is all
of
the
employees mentioned in the enclosed transcript held higher positions than
myself and held no personal regard to my workmanship or job status with
the railroad.
Form 1 Award No. 32050
Page 2 Docket No. MS-32549
97-3-95-3-457
I feel that I was mislead (sic) by Ms. Gloria Taylor, Personnel
Administator (sic) with the Florida East Coast Railroad, who stated in the
attached letter,
of
August 1, 1995, that she would `canvass supervisory
personnel under whom I performed service prior to making a final
determination. Although, all letters were in good faith on my behalf, Ms.
Taylor stated that `after reviewing my prior service record with the
Company, she could not give favorable consideration to my request for
reinstatement. However, Ms. Taylor probably made her decision prior to
"'canvassing supervisory personnel' and wanted to delay her decision.
What was her purpose for obtaining comments from my former
supervisors. Was it because she wanted the others to conspire against me,
as well. which they did not."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning
of
the Railway Labor Act, as
approved June 11, 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.
Claimant was a Laborer with approximately seven and one-half years of service.
By letter dated March 14, 1995 from the Carrier, the Claimant was "charged with
conduct unbecoming an employee by reason of having entered into an altercation with
Trainman Felipe Heng" on March 7, 1995; he was also "charged with exposing a
firearm which he obtained from his personal vehicle which was located on Carrier
property in an apparent attempt to inflict bodily harm to a fellow employee."
A formal Investigation was held on April 14, 1995. By letter dated May 10, 1995
the Claimant was dismissed from service for "e:posing a firearm", which was in his
personal vehicle, "located on Company property in violation of Company rules."
Form 1 Award No. 32050
Page 3 Docket No. MS-32549
97-3-95-3-457
On March 7, 1995, the Claimant and Trainman Heng were involved in a minor
vehicle accident on the Company's property. Without stopping his vehicle, Trainman
Heng proceeded to the Yard office. The Claimant followed Trainman Heng, in his
vehicle.
Both Trainman Heng and the Claimant parked their vehicles close to the Yard
office. After they exited from their vehicles, they engaged in a heated discussion. At
some point during the altercation, the Claimant returned to his vehicle.
What occurred when the Claimant returned to his vehicle raises the key factual
issue in this dispute between the parties. The Carrier contends that upon returning to
his vehicle, the Claimant reached inside, picked up a gun and then placed it back down.
The Claimant denies that he reached into his vehicle and picked up a gun.
The Board finds that the evidence is compelling in support of the conclusion that
during his altercation the Claimant went to his personal vehicle to secure a gun.
Moreover, the Board finds that be did so " in an attempt to inflict bodily harm to a
fellow employee."
Three persons observed the Claimant pick up the gun. Clerk Lura Borgert-Buss
observed the Claimant pick up the gun about "12, 16 inches and then he laid it right
back down." She added that "it wasn't pretend. It wasn't made up. I saw him pick up
that gun." The Claimant's act of picking up the gun was observed by the person
described in the transcript of the Investigation as Julio Ahneida, the "copy guy", and the
statement of Federal Railroad Administration (FRA) Inspector McCarty which was
provided during the Investigation of the incident.
The Claimant admitted that he had a gun in his vehicle. The Claimant said that
he took the gun "out" at the scene of the accident when Trainman Heng damaged the
mirror on his vehicle. He did so because he did not know "what this guy was thinking,
what was his problem?" The Claimant denied that he picked up the gun when he
returned to his vehicle during his altercation with Trainman Heng in the parking area
outside of the Yard office.
Trainman Heng testified that during their heated discussion which "wasn't
getting anywhere, the Claimant told him that he had "something for [himl." The
Claimant went to his vehicle, and as he turned around he "looked up and people were
Form 1 Award No. 32050
Page 4 Docket No. MS-32549
97-3-95-3-457
looking at us." As a result, he entered his vehicle and left. Conductor Robert Murphy
who was riding with Trainman Heng when the accident occurred, and witnessed the
altercation, in effect, corroborated the testimony of Trainman Heng by stating that the
Claimant said to Trainman Heng, in effect, "go ahead and get yours, I've got mine**."
Accordingly, the Company's charge that the Claimant exposed "a firearm which
[he) obtained from [his[ personal vehicle located on Company property, in an apparent
attempt to inflict bodily harm to a fellow employee" is based upon the convincing
testimony by Clerk Borgert-Buss, Trainman Heng, and Conductor Murphy, which is
consistent with the evidence of two other witnesses to the incident. namely Mr. Almedia
and FRA Inspector Murphy.
The Carrier has an unqualified obligation to provide a safe work place for its
employees. While engaged in the altercation with Trainman Heng, Claimant's conduct
of walking to his vehicle, leaning in and picking up the gun in his vehicle cannot be
dismissed as an empty or hollow gesture. Claimant Russell's actions carry with it the
risk
of
serious violence and danger to fellow employees. The actions
of
Claimant Russell
permanently alters the relationships between Claimant Russell and other employees and
the Carrier. The damage to these relationships is irreparable.
It would be useful at this point to refer to Chief Engineer Riehl's letter dated July
21, 1995 to Personnel Administrator Taylor, which, in relevant part, he stated the
following:
"...While I am not satisfied the investigation revealed all
of
the facts of the incident that provoked Mr. Russell to handle
the firearm, the fact that he did so in unacceptable. I fully
accept that Mr.. Russell did not show the weapon in a
threatening manner. However, the fact remains that the
weapon was handled from its place of storage preceding what
was anticipated to be an altercation of some form. If the
altercation which ensued had escalated, it is unknown
whether the weapon would have been used. This is
immaterial as I do not believe we can afford to learn the
answer."
Form 1 Award No. 32050
Page 5 Docket No. MS-32549
97-3-95-3-457
Rule 19
of
Rules and Instructions for the Engineering and Maintenance
of
Way
Department Employees provides:
"Carrying firearms, knives or other objects
of
any
description used in a manner to inflict bodily harm to others
or damage to railway property, either on their person or
railway property is prohibited."
Clearly, Claimant Russell was in violation
of
Rule 19. The Board concludes that
there is substantial evidence in the record to support the dismissal
of
Claimant Russell.
AWARD
Claim denied.
QBDEB
This Board, after consideration
of
the dispute identified above. hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois. this 10th day
of
June 1997.