Award No. 2(, Case No. 47

Public Law Board No. 2363

PARTIES Brotherhood of Maintenance of Way Employes
_TO
DISPUTE: and
Louisville and Nashville Railroad Company
STATEMENT "(1) The dismissal of Track Repairman Alphonse
OF
CLAIM: Williams was without just and sufficient cau&e,
unwarranted and on the basis of unproven charges.
(2) Track Repairman Alphonse Williams shall be
afforded the remedy prescribed in the first para
graph of Rule 27(f)."
FINDINGS: Claimant, a trackman with less than one year's
service (June 7, 1977 to May 12, 1978), became
irate when Foreman Morrison addressed him as
"Boy" in saying, "Boy, how about getting a jack
bar and help my men pull some jacks." He was
working at the time with other men under Mr.
Morrison's supervision, although his regularly
assigned foreman was Mr. Henderson who was at-
~3 e3 - ..two ZI(P 2

tending to other duties nearby.
According to the testimony of both foremen, claimant kept complaining about the use of "Boy" instead of his name and did not perform his work. When he continued in that vein for a considerable time, Foreman Henderson approached him and told him to get back to work and that he was unnecessarily wasting too much time. Mr. Henderson testified that claimant replied that it was none of his business and to stay out of it. When, according to Mr. Henderson, he reminded claimant that it was his responsibility as foreman to see to it that his orders were complied with and attempted to persuade claimant to get on with the work, claimant told him that "you can take your jive talk to hell." Williams was then relieved from duty. He was subsequently discharged on July 7, 1978, after a hearing was conducted by Carrier in this matter on June 9.
Claimant was offered reinstatement on a leniency basis on July 27, 1978. The offer was declined by General Chairman Coffey. On December 21, 1978 claimant advised Carrier, in reply to a call from Carrier, that he was interested in returning to work and attended a meeting that day in the company offices with Mr. Coffey and Carrier representatives. A physical examination was scheduled for him by Carrier on December 22 and he was told he could return to duty on December 26, a Tuesday, if he signed a letter regarding his reinstatement and passed his physi-

cal. He replied that he wanted to have his attorney approve the
letter before signing it and would return in an hour.
~.3~3- awo~c~

Claimant did not return to Carrier's offices that day or thereafter communicate with the company.

In line with well established principles and practices of railroad adjustment and public law boards, we will - accept the above related facts, although in some respects they are controverted by claimant, since they are supported by substantial credible evidence. As an appellate board, we are not in a position to observe and hear the witnesses or to resolve issues of credibility.

While the record does not establish that the foremen intended to offend or embarrass claimant and the word "Boy" in and of itself is not opprobrious, we can appreciate Mr. Williams' feelings in the matter when it is considered realistically and in a historical light. It is understandable that he needed time to assert and collect himself. The problem with his position is that he took too much time and unnecessarily exacerbated the situation. His actions may well have relieved his feelings, but are not helpful in insulating him from disciplinary action.

We will not substitute our judgment for that of Carrier insofar as its conclusion that substantial discipline is warranted. The nature of the foreman's remarks and claimant's reaction do not call for a contrary result. However, such extreme disciplinary action as dismissal is not appropriate in these cir-

cumstances; we will reduce the discipline to a 60-day suspension.
Carrier will be directed to offer claimant immed
iate reinstatement with seniority rights unimpaired and with
compensation for time lost from July 12, 1978 to December 21,
1978. He is not entitled to back pay subsequent to December 21,
since he failed to communicate with Carrier regarding its offer.
Whatever his response would have been, it could reasonably have
opened the doors to further negotiations and mitigation of dam
ages. On the other hand, it obviously would not be fair to limit
recovery to the July 27, 1978 date when claimant was first offered
leniency reinstatement without back pay.

AWARD:

Claimant to be offered immediate reinstatement with seniority rights unimpaired and compensation for time lost from July 12, 1978 to December 21, 1978. Award to be put into effect within 30 days.

Adopted at Louisville, Kentucky, q7,J //~ 1980.

v V V

Haro d M. Westo airman

arrier Member

Employe Memb