Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32409
Docket No. MW-32930
98-3-96-3-301
The Third Division consisted of the regular members and in addition Referee
John H. Abernathy when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (withheld from service on March 16, 1995 and
subsequent ten (10) day suspension) imposed upon Mr. R. J. Boyer
for alleged `. . . subterfuge to avoid performance of your assigned
Foreman duties in that you stated to Track Supervisor J. Demeno
at Conway Yard on Wednesday, March 15, 1995, that if you had to
pick up scrap you were sick and were going home, and subsequently
left the property on the basis that you were sick.' was arbitrary,
capricious and on the basis of unproven charges (System Docket
MW-3755D).
(2) As a consequence of the aforesaid violation, Mr. R. J. Boyer shall
receive the remedy prescribed by the parties in Rule 27, Section 4."
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 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 32409
Page 2 Docket No. MW-32930
98-3-96-3-301
Parties to said dispute were given due notice of hearing thereon.
Only Supervisor Demeno and Claimant were parties to a discussion between them
on March 15, 1995 and there is a conflict in their testimony as to what was or was not
said. According to Supervisor Demeno, Claimant took offense at being assigned the duty
of picking up trash and said that if he had to pick up trash all day, he was sick and
wanted to go home.
According to Claimant, he told Supervisor Demeno he had diarrhea and was
going on sick leave.
Carrier as trier of fact had to make a credibility determination. Carrier
determined Claimant was not a credible witness because his testimony was self-serving
and inconsistent, and he asserted he was suffering from one type
of
illness but brought
a doctor's slip for another. In addition, Claimant had a past history
of
leaving his
position.
This Board will not disturb the credibility determinations made by the trier
of
fact.
AWARD
Claim denied.
ORDER
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 21st day
of
January 1998.