PUBLIC LAW BOARD N0. 3888
Parties
to the
Dispute
Claim of the Brotherhood that:
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
Va.
MAINE CENTRAL RAILROAD COMPANY-PORTLAND
TERMINAL COMPANY
STATEMENT OF CLAIM
(a) The dismissal of Track Foreman Paul F. Tracy, Jr., was
arbitrary and capricious and without just and sufficient
cause, based on unproven allegations, which is in
violation of Article IV, Rule 22 of the collective
bargaining agreement.
(b) Claimant Paul F. Tracy, Jr., shall be reinstated without
loss of compensation, including overtime, and without
loss of seniority, vacation rights, insurance benefits,
and any other benefits that he was entitled to and
denied prior to and following May 17, 1986.
Case No. 1
Award No. 1
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OPINION OF THE BOARD
Claimant, a Foreman, was discharged from Carriers' service on
November 25, 1986, following an investigation conducted on November
17, 1986,
...to develop facts and your responsibility, if
any, in conjunction with an incident which occurred
at 5:45 A.M. on Wednesday, April 2, 1986, at the
South Cortland Main Street Dunkin Donuts parking
lot. In this incident, you allegedly struck the
window of the Main Central Vehicle 109, a Chevrolet
Suburban, Maine License Plate 109-029, with a club.
The window was shattered and the driver, William
Jordan, was cut about the face and neck.
Claimant was charged with violation of Rule 703 of the Rules
of the Government of the Operating Department and Rules GR-C third
paragraph, GR-D first paragraph, and GR-H fifth paragraph of the
Employee Safety Rules Manual. The incident that resulted in his
discharge occurred while Carriers were sustaining a strike by the
Brotherhood of Maintenance of Way Employees. The driver of the
Company vehicle whose window was shattered had been hired after
the commencement of the strike.
Carriers' decision to terminate Claimant was appealed immediately,
by mutual agreement, to Carriers' highest appelate officer and when
that appeal was denied, the claim was advanced to this Board for
final determination.
In brief, Carrier argues that Claimant was guilty as charged,
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that he was afforded a full, fair, and impartial hearing, and that,
given the seriousness of the offense, discharge was justified and
necessary. The Organization maintains that Claimant was denied
a fair and impartial hearing, that there was insufficient evidence
presented to support a finding of guilt, and that the charges were
not sufficiently explicit so as to allow Claimant an opportunity
to present a defense.
Upon a thorough review of the record of this case, including
the transcript of the investigation, this Board concludes that Carriers
fully met their procedural obligations in conjunction with the leveling
of charges and the conduct of the hearing.
Carriers' letter of April 7, 1986 was adequately detailed to
enable Claimant to prepare a proper defense. At the same time,
Claimant was provided with all procedural protections in his investigation guaranteed by Agreement. We cannot conclude, however,
that there was sufficient probative evidence adduced at the hearing
to sustain a finding of guilt.
Carrier is correct in noting that the level of proof required
to sustain a charge may differ in an administrative hearing from
that required in court, but, by the same token, the burden rests
with Carrier to provide sufficient evidence to support its charge.
Because of the lack of availability of key witnesses, Carrier was
not able to produce anyone at the investigation with a direct
knowledge of the incident. Instead, it had to rely on reports prepared for and by the police to carry its case. Purther,no one from
the police directly involved in the preparation of the reports was
present at the hearing.
While those reports point strongly to Claimant's culpability,
Carrier is basing its entire case on hearsay documentary evidence.
Such documents are given weight when used in conjunction with direct
testimony, but they are not sufficient, standing alone, to support
a finding of guilt where the alleged infraction warrants permanent
loss of one's job.
This Board wishes to make it clear that it does not condone
the type of violence evidenced here. Any employe who engages in
such a practice will most assuredly be terminated in the future.
AWARD
Claim sustained. Claimant shall be
returned to work with full back pay less
outside earnings dating back to May 19, 1986.
C.
C. H. Cold, kNeufral Chairman
B. L. Peters Carrier Member W. E. Rue, Employe Member
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87
Da of Adoption