Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33919
Docket No. MW-34362
00-3-97-3-981
The Third Division consisted of the regular members and in addition Referee
Sandra Gilbert Pike 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 dismissal of Mr. B. D. Brown for alleged violation of Safety
Rule 60.2, Paragraph 3 and unauthorized tampering of safety
device air horn on September 11, 1996, was arbitrary, capricious
and excessive (System Docket MW-4487-D).
(2) The Claimant shall be reinstated to service with seniority and all
other rights unimpaired, his record 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 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.
Parties to said dispute were given due notice of hearing thereon.
Form 1
Page 2
Award No. 33919
Docket No. MW-34362
00-3-97-3-981
Claimant, B. D. Brown held a Trackman Operator position in Rail Gang 110 with
headquarters at Rutherford, Pennsylvania. At approximately 8:30 A.M. on September
11, 1996, Claimant opened the rear door
of
the transport bus and sounded the
watchman's air horn twice through the bus. The noise
of
the air horn caused one coworker to be taken to the hospital for traumatic hearing loss and three ot
short term injury.
Claimant was removed from service and sent a Form 6250 Notice
of
Hearing
dated September 16,1996, Claimant was instructed to appear for Hearing in connection
with charges of:
"1. Violation
of
Safety Rule 60.2, Para. 3, which states, `While on duty,
do not take part in scuffling, practical jokes or horseplay.' When
on September 11,1996 at approximately 10:15 AM you sounded an
air horn through the rear door
of
the bus, causing possible injury to
ears
of
four employees, one
of
which was taken to the emergency
room for treatment.
Unauthorized tampering
of
a safety device (air horn) when on
September 11,1996 at approximately 10:15 AM you sounded an air
horn through the rear door
of
the bus, causing possible injury to
ears
of
four employees, one
of
which was taken to the emergency
room for treatment.
3. Endangering the welfare
of
fellow employees when on September
11, 1996 at approximately 10:15 A.M. you sounded an air horn
through the rear door
of
the bus, causing possible injury to ears
of
four employees, one
of
which was taken to the emergency room for
treatment."
After the Hearing which was held on September 26, 1996, Claimant was notified
by Form G32 Notice
of
Discipline dated October 7,1996, that he had been found guilty
and that the discipline
of
dismissal was assessed.
Claimant's dismissal was appealed on the property in accordance with the terms
of
the controlling Agreement. The parties being unable to resolve the issues, this matter
comes before the Board.
Form 1
Page 3
Award No. 33919
Docket No. MW-34362
00-3-97-3-981
The Organization argues that Claimant did not receive a fair and impartial
Hearing because (1) the transcript provided to Claimant's Representative had various
corrections marked on it and Carrier failed to supply Claimant's representative with a
corrected copy of the transcript; (2) written statements obtained from employees, which
had not been furnished to the Claimant or his Representative, were made part of the
evidence in the case; and (3) that Hearing Officer Packosky read the Carrier's version
of Claimant's record into the record. In addition, the Organization argued that
Claimant should not have been dismissed in light of his years of service, a lack of
progressive discipline, and his repentant attitude.
Claimant's representatives received a copy of the transcript. Second Division
Award 12971 held that failure or refusal to furnish a list of witnesses and documents to
be used at the Investigation, prior thereto, does not contravene Claimant's Agreement
rights. See also: Third Division Awards 14187, 13670. In addition, this Award quoted
Third Division Award 16308, which held that:
"Numerous awards of this Board had held that written statements of
witnesses not present at an investigation are admissible in the absence of
contractual prohibition. Awards 10596. 9624, 9311. 8504, and others."
After careful consideration of all the evidence, the Board finds that the record
does not contain compelling evidence that Claimant's Hearing was unfair.
Regarding the merits of the case, Claimant confessed to blowing the air horn as
a "little gag," stating that he did not know what had gotten into him and that he did not
intend to harm anyone. Unfortunately this "little gag" committed without thought of the
possible consequences of the action is serious misconduct which resulted in injury to
other employees. Third Division Award 28484 held:
"Where, as here, there is an admission of guilt, there is no need for further
proof Where, as here, there is no mitigation of the admitted guilt, this
Board is without power to reverse the discipline as assessed by the Carrier.
The precedent in this regard is so overwhelming as to preclude the
necessity of numerous citations. Third Division Awards 22840, 24591,
24993, and 25164 are but a few of the plethora of Awards on this subject."
Form 1
Page 4
Award No. 33919
Docket No. MW-34362
00-3-97-3-981
We find no justification for the Board to interfere with the Carrier's decision of
dismissal. The claim is denied.
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 24th day of January, 2000.