Public Law Board No. 2363
PARTIES Brotherhood of Maintenance of Way Employes
_TO
DISPUTE: and - _
Louisville and Nashville Railroad Company
STATEMENT 1. Dismissal of Machine Operator P. D. Durkalski
_OF
CLAIM: on February 27, 1978 was without just and suffi
cient cause and was exceedingly disproportion
ate to the charge from the arising
on December 29 and 30, 1977.
2. Claimant shall be reinstated to his former
position with seniority rights unimpaired with
all other benefits and privileges. Rule 27(f).
FINDINGS: Claimant, an employe with about 4 lj4 years
service, was dismissed for willfully damaging
Carrier vehicles.
There is substantial evidence, consisting of
testimony by a fellow employe, L. A. Flowers, that supports Car
rier's findings of willful damage to the vehicles. That evidence
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establishes that while a few of Carrier's trucks were on line
at a crossing waiting for a train to pass, their drivers engaged
in what they considered "horseplay." In the course of their
foolish antics; according to Flowers, claimant threw coke bottles
from his van and hit other trucks; he also hurled paper that was
on fire at the trucks and later broke the headlights on the dump
truck with a wrench. On the following day, these inexcusable
antics were repeated in some degree and 'Flowers testified,claimant smeared the window of a truck with a cupcake and broke the
headlights on the van.
While claimant denied all but throwing the cupcake, Flowers' testimony is credible and there is no indication
in the record that it was prompted by any improper consideration.
We have considered the contention that Carrier
subsequently restored to service, on a leniency basis, several
of the drivers who also threw objects at company trucks on these
occasions. This Board is nevertheless not persuaded that Carrier's decision to dismiss claimant and not subsequently to reinstate him should be reversed. The exercise of leniency in regard to reinstatement rests with Carrier under the circumstances
of this case. We are not in a valid position to require Carrier
to retain employes who have deliberately damaged its equipment.
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AWARD: Claim denied. ,
Adopted at Louisville, Kentucky 711980.
~Yi ld M. Wes on, Chairman
Employe Memb