Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42098 Docket No. MW-42408 15-3-NRAB-00003-140021

The Third Division consisted of the regular members and in addition Referee Michael Capone when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(National Railroad Passenger Corporation (Amtrak)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Mr. D. Grey by letter dated June 26, 2013 was excessive, arbitrary, discriminatory and unreasonable (Carrier's File NEC-BMWE-SD-5177D AMT).

(2) As a consequence of the violation referred to in Part (1) above, 'The

Organization requests that the disciplinary decision of dismissal issued by Mr. George Fitter on June 26, 2013 be rescinded immediately, Mr. Grey be reinstated and made whole from June 27, 2013 to his reinstatement date.'"

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.

The Claimant was employed as a Track Foreman on the New England Division when he was dismissed from service on June 26 after an Investigation held on June 18, 2013 for violating the Carrier's Standards of Excellence governing Attending to Duties, Professional and Personal Conduct, and its Workplace Violence Policy, as a result of his threatening and violent behavior toward his Supervisor on May 8, 2013.

In discipline cases, the burden of proof is upon the Carrier to prove its case with substantial evidence and, where it does establish such evidence, that the penalty imposed is not an abuse of its discretion. The Board carefully reviewed the evidence and testimony and finds that there is substantial evidence in the record establishing that the Claimant engaged in threatening and violent behavior towards his Supervisor Tad Andris. Nothing in the record indicates that the Carrier was arbitrary or capricious in determining the credibility of the witnesses. Absent such bias, and in accordance with ample precedent, the Board here cannot substitute the Carrier's credibility determinations with its own. The testimony of the witnesses confirms that the Claimant engaged in a verbal confrontation with the Supervisor when he made a threatening and aggressive move toward Andris and "swung his fist." There is no evidence in the record that the Carrier is limited in its "zero tolerance" application of its Workplace Violence Policy.

Threatening a supervisor with physical harm and violent behavior is a serious offense that has been upheld in previous termination cases involving the Carrier. In Public Law Board No. 4979, Award 32 it was held that "The Carrier correctly argues that the threatening of physical harm to a supervisor is a most serious offense, for which dismissal from service is an appropriate disciplinary response. The Board is without sufficient assurance as to the Claimant's demeanor to overrule or modify the Carrier's judgment in this instance." Here, the Claimant's threatening demeanor is well established in the record and supports the Carrier's decision. See also Public Law Board No. 2406, Award 57 and Special Board of Adjustment No. 973, Award 752.

Despite the valiant argument by the Organization, the Board rejects the premise that prior Awards where provocation by the person assaulted should be a reason to mitigate disciplinary penalties applies to the instant case. The record describes a heated exchange between the Claimant and his Supervisor, but does not confirm that Andris engaged in a violent act. There is no testimony that the Claimant acted in selfdefense. Further, the record establishes that the two employees were standing between three and five feet away from each other when the Claimant moved in a threatening manner and swung his hand toward Andris' face.

The Board finds that the Claimant violated the Carrier's Rules and Policies with threatening physical behavior. He is a short-term employee with four and one-half years of service. The dismissal of employees for acts of violence and with many more years of service has been upheld by the Board.

Once the Board has determined that there is substantial evidence in the record to support the charges, we must decide if the discipline imposed is unreasonable, arbitrary, or capricious. Given the nature of the offenses with which the Claimant was charged and the short duration of his employment, we find no basis here to conclude that his termination was either excessive or arbitrary. Further, legions of Awards have established a standard where leniency requests, absent evidence of an abuse of discretion, are reserved for the Carrier. Accordingly, the Board has no basis to modify the Carrier's determination to dismiss the Claimant.

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 13th day of July 2015.