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i-uiti,lC IAW II)AI<D HU. IBM
Aw;srd No. 1
· Case No. MW-131.-76-100
Parties lirotlierttcx>d of Wihilunancu of Way niq)loyues
to and
Dispute Norfolk quid Western Railway
ConK)ZZUIy
Statement 1. Carrier violated the effective Agreement when it enIiairly and without
of Claim: just cause dismissed Suction laborer R. L. Walker from Carrier's
service on June 29, 1976.
2. Claimant shall lx; reinstated wi.th hay fur all tines lost and
w.iUi
seniority and vacation ri(jhts unimpaired.
findings: The Board finds, after (nearing ulun the whole record acid all evidence,
that the parties herein are Carrier and 1Siployoo within the meaiiiixg of
the Railway Lalx>r Act, as aircmded, that this Board is duly conslituted3
by Agree:ant dated March 1, 1976, th<<t it has Jurisdiction of the
parties and the subject
natter,
and that the parties were given due
notice of the hearings held.
Claimant had been unployed as a Suction l.atrorer for four (4) years
prior to his dismissal., Jme 28, 1.976, by kua&mster McGinnis Hale. Thu
Roadmaster confirnud such dismissal July 2, 1976, specifying the
reasons therefor as:
1. UnautWrized absonue from duty the afternoon of June 25, 1976
2. Acts of insuWrdinate conduct June 28, 1976, in threateniny
bodily harm, intimidated arid uavd profane- and obscene l~uigu;iqe
towards Roadnuster Lla t e.
An investigation, as rotluestud, was held in connection therendith and
Claimant was advised, August 2.3, 1976, by Ule Division
Elgineer
Maintenance, that he was disnussud for violation of Rule. 26 and his
insubordinate actions of
JW1e
28, 1976.
During the appellate prcxxas ol` Lhis claim CWrriur's highest desidnat.ed
officer offered in November 1976 to ruinsu.1to claimbit on a lul.ioncy,
basis witlxDul pay std-)jUCt L<) his s;itisfacturi.ly passing a return to
` -2- Award No. 1
work physical examination. Carrier thought the Brothurhood understood
that any question on "tine lost" could be further huddled. The
Brotherhood, in any event, would not accept such offer. Carrier
offered, December 8, 1976, to mitigate the discipline imposed without
pay subject to claimant's passing the return to service physical examination. Carrier thereafter wrote Claimant, Dececnber,21, 1976, advising
him that the discipline had been mitigated, that he was to return to
work without pay and that
he was
to report for a physical examination on
December 29, 1976.
An attorney wrote Carrier, but not the Brotherhood, on December 27,
1976, alleging therein that Claimant had "consulted" with him concerning
Claimant's dismissal. Said attorney advised, among other things, that
Claimant "will retuu-n to work at anytime so long as it is understood
that Mr. Walker will not lose his right to maintain his claim for what
we consider a wrongful discharge." Carrier advised said attorney,
January 21, 1977, that there was some misunderstanding on his part,
that the decision to mitigate did not preclude Claimant or his duly
authorized representative from handling the claim of time lost up to the
date that Claimant Walker was instructed to report for a physical
examination.
Rules 426-427 are Carrier's conduct rules, while Rule 26 -- "Detained
from Work" -- is a contract rule which requires, among other things,
that an employee will obtain permission from his foreman to be absent.
The majority of the Board, as to the incident of June 25, 1976, is
irrpelled to conclude that the evidence in connection therewith is
more clearly persuasive of the view that Claimant was at least
entitled to the benefit of doubt as to whether he specifically had toldhis acting foreman, Ben Smith, that tie, Claimant, was going to the
dentist about an ulcerated tooth, than the view that Claimant had not
told him. Claimant states unequivocably that he had, while the foreman expressed doubt as to whether he had. Additionally, Claimant's
actions, supported by the testimony of the remaining members of his
gang (two) , provides the more credible basis for reasonably concluding
that Claimant had been given tacit permission by Acting Foreman Sndfih.
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-3- Award No. 1 ~"
~g39
The causes given for the send basis of discharge appear to impinge
primarily upon the Roadmaster's allegation that, on June 28, 1976,
Claimant "ran to his truck getting a pistol out of the front seat, then
laid the pistol back in the seat, jumped in his truck and left." Clearly,
such
an irreponsible, foolhardy and dangerous act, if true, would
represent an assault upon another. If proven,
such
an act, which represents a threat to one's safety and well being, is punishable by civil as
well as industrial authority. FIowever,
this
record does not provide the
necessary support for concluding that such a serious act had, in fact,
occurred. Claimant's presence on the property on June 28, after being
off with permission to have a tooth extracted, resulted from the request
of his imTediate Supervisor,ForaTan Muncey. The profanity, which is held
to be not obscene, was initiated by the catalyst in the incident, Roadmaster
Hale. The testilmny of witnesses, other than that of the Roadmaster, precludes the acceptance of such as a reasonable basis for discipline. The
Board thus finds that Carrier's conclusion as to Claimant's culpability
represents an abuse of its discretionary right. In the circumstances
here involved, such is reversed.
The Board finds, as to the pay for time lost aspect of the herein claim,
that liability therefor is limited to the period ending December 29,
1976. Claimant's discipline was mitigated December 8. However, in
view of any possible misunderstanding that may have ensued as to Claimant's right to clarify same and to permit him to pursue the question of
pay for time lost, the Board finds that Claimant was constructively
restored to service and instructed to report thereto on December 29,
1976. Consequently, any tine lost thereafter is held to be by Claimant's
choice and was at his own peril.
Award: Claim sustained as per findings.
Order: Carrier is directed to make this Award ;eff on or before June 1, 1978
r
All
A. ' gham, EYrn o ee Member G. . Edwards, Carrier Member
ur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, DE, May 1,'1978.