PARL'fMS TO OLBTUTL;:

    1'c,rt Torminal Railroad Asscci.ttion -


        and


    Uro tlterkood <, f Railway, Airline anti Steamship Uorlca


                STATHT(RNT OF CL.AINI


    "f 1) 'file Association violated the Rule, of the

    cterrt:nt Agreemt·rtt I,etwcun the parti,ei ;_n

    cludirLh, but nut limited to Ru1C· 26, when

    nn Octr,her 23, 1980, :it 3:00 I)-m., it dis

    misst_d Cloric ,J. 12. Smitli from its service

    for aLLegvedly ltee.tng clnrirrclsome and malcirtg

    v.iciou:i thre:ltt.s to ;ltl nfflt:er of the A31r1

    c:iati.un, an,l then did not prove tltose c:harga:s

    thering the hearing ott Octoltor 30, 1.9141,1.


      J3) 'fhc Arts<tc:iatinn further violatod thotie same

        t'hrloss when it denied Claimant the unnue5- -

        tionod fundamental right to be judgcti by

        %ntpartial and unbiassed persons in the review

        and appeals procedure following the invosti- -

        %~atiotl.


      (3) Clcrk J. R. Smith, Houston, Texas, shall be

      roinvtatcd to the service of tilt: Associal Lori

      with. inns tNettiori ty, vacation, inesuranr.c tied

      Lill, other emplove rights restorer! tttrittth;lired,

      clear hiss or·rvicc rceorta, itay irIm fur all tltrtn

      lttat including; rei.tnhot·xr:mont for ittry metlieetl,

      surgical or dental oxl·ctlscs incurred for him

      self or, depertdenrm to the extent that much pny^

      tttutttti would have heart paid by Travelerx Group

      Volfi.cy Nn. GA-'2)))U() ur Aetuttati.vrtct7.l>ort~al

      flan Gf-12'000 ,reel rei mburscment far prr'rtlittttt

      ltttvtttt·nts he may have mall( in tile ptercharso of

      4tr1J."tittttn lict.tltAt, wt·l.rare, life arid tlcntal

      lrt ;,.u-:utt:e ~ t r

                                              ~7~ W


                  OPTUION or HOARD


On October a3, 1980' the Claimant was advi,Sod that lie was dismissed as an employee for allegedly making "%riciou~s - threats" to a Carrier Official,, and for being "tluarrelsome", in violation of I7ula Irfi. The alleged offense Look place in a telephone conversation on October 20, 1980.

 Subsequent to a hearing on the charge, the Cdrrier reCumed to alter the discipline of dismissal.

 The Organization has raised certain procedural questions in itra Submission concerning the role played by a witness who
 ubsequently made a decision concerning guilt. A3 we review the record presented to us, the Organization made certain requests that thn individual be designated as the llearing Off:Ccer and also called the individual as a witness.

 While it might have been a better procedure to then change cartairr lines of appeal; nonetheless, the Claimant,
 IrifilAUlf, set the matter.- into motion and we find no prejudice -.
 to the Employee.

      Concerning the merits of the case, Rule 40 states:


      "hmployes who are careless of. the safety of themselves or others, insubordinate, dishonest, immoral, quarrelsome, or otherwise vicious, will be subject to dlsmlY4a1."


The Transportation Supervisor testified that he received a telephone call from the Claimant, and the Employee asked - why he had changed certain hours of a job in the Car Record; Department. During the ensuing discussion, the Supervisor stated that the Claimant said that "they" were going to bump and hid nn key positions and that "they" would control and dib-rupt the operations of the railroad. Additionally, he stated that ho was going to bump on tire Crew Caller's job and lay-off so that he could control the Extra Board.

 The Supervisor stated ttrat he and the Claimant "...ended the conversation on a friendly note..." 'rho. next clay, the Transportation Supervisor reports^d the conversation to his Superintendent. The Transportation Supervisor conceded that he had advised the employees that any business pertairsing to i:ho Clerks "would be handled through him at home, if necessary." He denies, however, that the conversation reported rrbcive wiry "off the record ."

 Tls« tcl,0pborre Currversntion was not "loud", nor were voices "revised"; but nonetheless the Superintendent felt thzrt the conversation conmti.trtted a "vicious threat" because the Rmployee
 stated he was going to exercise lilts seniority in much a manner as to disrupt the operation, and that the result of the disruption was explained.

 The Claimant concedes that ire called the Supervisor at the time in rinestion, and that he made reference to changing the hours nn certain ,jobs in the Car Records Department. However, he denies that tie indicated that lie would create a disruption in the manner described. Ile felt that the conversation was "off the record", and he denies that there was any "blackmail" implicit in the discussion.

 Initially, the Board notes that it is not incumbent upon u$ to resolve questions of credibility. In order to have sustained the discipline of discharge, it is obvious that the Carrier resolved credibility questions against the Employee and in favor of the Supervisor, and we will not disturb that finding. However, that does not dispose of the case.
While we will certainly agree that it is inappropriate for an employee to contact a Supervisor at his home and engage in a conversation which can he construed as threatening of disruptive activity, at the same time we seriously- question that the discussion amounted to "vicious" conduct, as we tuLderstand. that word, and as we view it in the context of Rule 116. The Employee did not yell or raise his voice; the conversation ended on a friendly note; and the Employee was apparently stating what he could permissively do under the seniority and bidding provisions of the agreement and was pointing out what kind of disruptive activity could be effectuated.

 Accordingly, we are unable to find vicious conduct under this record. We do feel. that the Employee's conduct was Un called for, and was conduct unbecoming an employee; and we Find that the charge is broad enn»gh to-Include some degree - of discipline for such conduct. Accordingly, we will uphold a ninety (9O) day suspension.

                    FINDINGS


The Board, upon consideration of the entire record and all of the evidence finds:

 The parties herein are Carrier arid Oruployee within the meaning of the Railway Labor Act, as amended.

 This Board has jurisdiction over the dispute involved herein.

 The parties to said dispute were given due and proper notice of. !rearing thereon.

                        9.

A4JAIttI
1. Claim ilustairted to the extent that disciplinary action in excess of a tiirrety (9U) day stispensiun is set as id0.

 Carrier shall comrly with thin Award within thirty (1tl) days of the effectLVP (late.

Joseph A. Sl.cl es

Chairm-~`~n and Neutr 1 Member


T. Minallalr
 Carrier Member

 ly/(
          ~csic~


C. Sh Col III' Or gainiLatirn Member
              PUBLIC LAW BOARD NO. 2752


' AWARD NO. 7
                        CASE N0. 7

                        INTERPRETATION NO. 1


    PARTIES TO DISPUTE: Port Terminal Railraod Association and


    Brotherhood of Railway, Airline and Steamship Clerks


                STATEMENT OF CLAIM


    "(1) The Association violated the Rules of the

    current Agreement between the parties including, but

    not limited to Rule 26, when on October 23, 1980,

    at 3:00 p.m., it dismissed Clerk J. R. Smith from

    its service for allegedly being quarrelsome and

    making vicious threats to an officer of the Associa

    tion, and then did not prove those charges during

    the hearing an October 30, 1980.


    t2) The Association further violated those same

    Rules when it denied Claimant the unquestioned

    fundamental right to be judged by impartial and

    unbiased persons in the review and appeals procedure

    following the investigation.


    t3) Clerk J. R. Smith, Houston, Texas, shall be

    reinstated to the service of the Association with

    his seniority, vacation, insurance and all other

    employee rights restored unimpaired, clear his

    service record, pay him for all time lost including

    reimbursement for any medical, surgical or dental

    expenses incurred for himself or dependents to the

    extent that such payments would have been paid by

    Travelers Group Policy No. GA-23000 or Aetna National

    Dental Plan GP-12000 and reimbursement for premium

    payments he may have made in the purchase of sub

    stitute health, welfare, life and dental insurance."

                  INTERPRETATION


.In April of 1982, the Board issued its Award in this Case, which, in essence, sustained a ninety-day suspension but set aside the dismissal from service and ordered that the claim be sustained concerning any disciplinary action in excess of said ninety-day suspension.

 In asserted compliance with Award No. 7, the Carrier has made certain "straight time" payments to the Claimant, but has failed to pay fox overtime, which the Organization asserts would have been earned, has failed to pay for holidays falling on Saturdays, and has not reimbursed the Employee for medical, surgical or dental expenses incurred for himself or dependents, to the extent that such payments would have been paid by insurance policies.

 The purpose of a sustaining award in this type of dispute is to not only restore the Employee to service with retention of seniority, but also to compensate him for the amounts of money which he otherwise would have earned. In reaching this interpretation, it is important to realize that the Board, in essence, is stating that the Company's action was inappropriate and, therefore, the Carrier is required to place the Employee in the position he would have occupied had the improper action not been taken, to the extent that such a result is possible to calculate.

 The Statement of Claim appearing on Page one of the Employee's Submission to this Board seeks, in addition to reinstatement with seniority, vacation, insurance, pay for "...all time lost including reimbursement of any medical, surgical or dental expenses incurred for himself or dependents..." Interestingly however, the Statement of Claim which appears on Page One of the Carrier's Submission to this Board states that he be paid "...for all time lost, including any overtime he could have earned, and that he be reimbursed for any medical, surgical or dental expenses incurred for himself of his dependents..."

 while the Board cannot account for the inclusion of overtime considerations in the Carrier's recitation of the Statement of Claim, when said words do not appear in the organization's version of the "claim": nonetheless, the Carrier's Manager of Personnel and Labor Relations obviously understood the claim can be broad enough to include overtime payments. Yet, in the November 17, 1980 Declination by that

                      -2_

same Carrier Official, it is argued that the "additional compensation" not provided under the Agreement, i.e. the medical payments, is improper, but no such allegation is made concerning overtime payments.

 It is well established in determinations of the Railroad Adjustment Board and Public Law Boards that a carrier is obligated to object while the matter is still under review on the property -- if it objects to the claims sought by the employees. While, obviously, the carrier objected to any restoration to service or any reimbursement, the documents of record indicate that said objection was based upon the fact that it felt that the Employee was guilty of the charge, and not because the request was not broad enough to include overtime.

 It is the interpretation of this Board that the claim is broad enough to include reimbursement for overtime, if it can be reasonably established that the Employee would have worked certain overtime during the time of his absence (except for the first ninety days). Moreover, it is apparent to us that the former Carrier official -who wrote the submission was aware that the claim was that broad, but no objection was made to the Board concerning the extent of the request.

 Concerning the medical, surgical and dental expenses, once again the Board is of the view that the Carrier has an obligation of restoring the individual to the status he would have enjoyed had he not been terminated, if that is reasonably possible. Thus, it appears to this Board that it is appropriate for the Carrier to reimburse the Employee for medical, surgical or dental expenses reasonably incurred for himself or his dependents which would have occurred in the normal course and which would have been paid by the Travelers or Aetna Policies. Concerning any other compensation not specifically mentioned herein, if the Employee would have been reimbursed in certain amounts had he remained on the active payroll, it is appropriate that he be reimbursed under this Interpretation.

 The Hoard remands the matter to the parties to ascertain the reasonable amount of overtime which would have been worked by the Employee and paid for by the Carrier, if such a computation is possible; and for the parties to ascertain the amounts of medical, surgical expenses incurred, and any other amounts reasonably due. The Board will retain jurisdiction of this

                      -3_

matter and swill issue a final decision on the extent of damages, i£ the parties are unable to resolve the issue.

      This Interpretation No. 1 to Award No. 7 is

issued this day o£ ^---:'-- " __.
                          =N, 59¢


Q air A. Sickle
 air n and Neutr Member

 em an
 ,Yrganiza 'on Member

 T. M, stone
 Carrier Member

,k


DATED March fi, 1984 at Houston, Texas