' PUBLIC LAW BOARD N0. 1838
Case No. MW-CR-77-101
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement 1. The dismissal of Extra Force Laborer D. L. Morris was
of without just and sufficient cause, wholly disproportionate
Claim to the alleged offense.
2. Extra Force Laborer D. L. Morris should be given the
opportunity to return to the employment of the Norfolk and
Western Railway Company, and compensated for all time lost,
with vacation, seniority, and all other rights unimpaired,
after a reasonable discipline period.
Findings The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within
the meaning of the Railway Labor Act, as amended, that this
Board is duly constituted by Agreement dated March 1, 1976,
that it has jurisdiction of the parties and the subject matter,
and that
the parties were given due notice of the hearing held.
The Claimant, an Extra Force Laborer, was employed as such
for about a year and a half. He was operating a Pneumatic
Spike Driver (air hammer), with the T-3 Tie Gang, on February 24,
1977. Claimants function was to drive in any spikes not
properly-driven by the automatic spiking machines which were
preceeding him.
Claimant, at some point in time, asked his Foreman, Mr. Bill
Payne, a thirty year veteran, to send someone to run the
Pneumatic Spiker because he was tired. The,Foreman told
Claimant that there was no one then available to relieve him.
Whereupon, Claimant told the Foreman that he would not drive
Award No. 14 " 1838
Page 2
any spikes. The Foreman instructed Claimant to go see the
Tie Gang Supervisor and tell him that he wasn't going to
drive any more spikes. He did and the Tie Gang Supervisor
told Claimant to return to his machine, do the best he could,
and that he would be sending men back to help him shortly.
Claimant, upon returning to the rear of the T-3 Tie Gang,
advised Foreman Payne what the Tie Gang Supervisor had told him
and in so doing was gesturing with his finger almost in the
Foreman's face. The Foreman took ahold of Claimant's finger.
Whereupon Claimant struck his Foreman on the jaw with his
fist, knocking him unconscious and causing his head to strike
the ballast. The Foreman received a cut of the'back of his
head which required nine stitches.
As a result of this altercation Claimant was removed from
service at approximately 3:00 PM on February 24, 1977.
A formal investigation was-held on March 16, 1977. As a result
thereof Carrier concluded that Claimant was guilty of having
assaulted his Foreman W. H. Payne, Section Foreman, on February 24,
1977.
The Board finds that Claimant was given a fair hearing.
There was sufficient evidence to support the conclusion
of Carrier that Claimant had assaulted his Foreman. We find
that the discipline assessed therefor was not unreasonable.
Here, Claimant used more force then was necessary in the
circumstances prevailing.
Award No. 14 - l $3
8
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If leniency is to be extended such should be a matter for
the Carrier. A denial Award here should not estop Carrier
from so doing. In fact there are circumstances herein which
cause the Board to recommend that Carrier re-hire Claimant and
place him under a different Foreman. Claimant has a good record,
he is highly recommended and comes from a railroad family and
has been off a long period of time.
Award Claim disposed of as per findings.
~..~-' - ~u
Arnett, Employee -Member G. C. Edwards, Carrier Memo
Arthur T. Tan Wart, C airman
and Neutral Member
Issued at Wilmington, Delaware, November 26, 1979.