PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEPtt NT OF CLAIM: -
1. The ordered suspension pending investigation effective
November 13, 1987 and the eventual dismissal of System Gang
9062 Laborer Brad B. Brown for alleged violation of various
Company Rules as indicated in Mr. R. D. Naro's letter of Novem
ber 28, 1987 was arbitrary, capricious and unwarranted.
'.:. The claimant's record shall be cleared of the discipline
referred to in Part (1) hereof and he shall be returned to
service with all rights restored unimpaired and pay for all
work time lost to date which is fifteen (15) days 11-13-87
through December 3, 1987 and
pay
for all future time lost which
he would be allowed to work had his seniority and employment
relationship not been inappropriately terminated.
FINDINGS: This Public Law Board No. 4338 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was charged with being insubordinate
and quarrelsome to Track Supervisor L. L. Paczosa indicating a
possible violation of Rule 607, Paragraphs 3 and 6, Form 7908,
revised 4-85, Form 7908.
The claimant was notified to attend an investigation in Topeka,
Kansas on November 19, 1987. Pursuant to the investigation the
Carrier found the claimant guilty of violating Rule 607 of Form
7908 and dismissed him from the service of the Carrier effective
November 12, 1987.
The transcript of the investigation contains 60 pages of testimony
and also included several exhibits. At the commencement of the
investigation, the Union alleged that they had requested the Carrier to provide two witnesses, Mr. Manley and Mr. Coan, who had
direct knowledge of the circumstances involved.
L. L. Paczosa, Track Supervisor of Tie Gang 9062, testified that
on the date in question his gang was installing old cross ties
with new ones on a system level at various locations. He stated
that on November 12, 1987 at approximately 9:00 a.m. he was in
conversation with Mike Coan about taking away three hours of time
from his time roll.
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Award No. 15
Page 2
Supervisor Paczosa then testified that after this conversation
he went to the gang bus and talked to the claimant (Brad Brown).
He stated that the claimant came out of the bus, which was about
100 yards away, and started walking toward his truck.
Mr. Paczosa testified that he was talking to Dale Peco- and Bob
Moser, Engineers of Track, when the claimant came up to him and
demanded a ride to the telephone. He stated that he asked the
claimant if it was an emergency, and the claimant replied that
it was not, but he wanted to talk to the Union. He stated that
he told the claimant if he wanted to talk to the Union, he would
have to do it on his own time, either before or after work. He
testified the claimant told him he had permission from the Union
to make a call. He stated he again asked the claimant who he was
going to call, and the claimant replied: "The Union." This wit"Coo the:. stated that he advised the claimant he could not let him
leave railroad property while he was working, and the claimant.
replied: "I don't care" and started to walk away from the job site.-
Supervisor Paczosa then testified that he walked :after the, claimant
:end advised him to get back to work and I would see what I could do
lur him. He stated that he started to walk back to the bus, and
the claimant followed screaming in his face and saying that l lead
no right to do this, and further I was fucking with his time and
fucking him all around.
This witness-further testified that all the laborers were waiting
for the machines to change track and witnessed the claimant screaming at him. He stated he told the claimant to quiet down, that he
didn't need to make a scene. He stated the claimant replied: "You
haven't seen me mad yet or really start to scream."
Supervisor Paczosa then stated that the claimant continued to
scream at him for a total of about five minutes and kept throwing
his arms up and saying: "Why are you fucking me?" He stated the
claimant again demanded to be given a ride to a telephone.
This witness then testified that he went to the phone and called
LaUUr Relations and advised them what had happened. He stated he
saw his bus driver taking the claimant somewhere, and he stopped
the pick up, and the claimant got out and started to wall: off the
Company property. He stated that he asked the claimant to remain
on Company property.
Supervisor Paczosa also testified that he continued to fill out
the papers to pull the claimant out of service. He then stated
that Bob Moser and Dale Peco talked to the claimant, and Moser
advised him that the claimant was in the bunk car. He testified
that he went toward the bunk car, and Roadmaster Pensick drove
up. He stated he explained to the Roadmaster what had occurred,
and he and Joe Pensick went to the bunk car. He stated that he
read the notice of charges to the claimant and advised him that -
he was pulling him from service. He stated he allowed Alike Coan
to take the claimant somewhere.
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Award No. 15
Page 3
Supervisor Paczosa also testified that the claimant was seen beating on the hood of a Company vehicle and put dents in the hood.
The testimony of all the other witnesses has been considered and
studied. The claimant himself denied using vulgar and obscene
language. However, the evidence is clear and convincing, anti
the Carrier was justified inreaching a decision that the claimant
did use foul and vulgar language toward Supervisor Paczosa. Also
the evidence is clear that the claimant delaved the work and
created a disturbing situation at the work site on the day in
question. -
The witnesses requested by the Union were present and testified.
Under ordinary circumstances-the conduct of the claimant herein
would justify discharge. However, there q.ro some extenuating
circumstances in this case which require that the discipline
assessed be modified.
Supervisor Paczosa testified, and during his testimony he was
asked if he cursed and used vulgar language about his immediate
subordinate officer to an assistant foreman on the gang, and he
replied that he did not understand how that pertained to Lhein
subordination of the claimant. The hearing officer stated that _.
the charges were not brought against Mr. haczosa, and Mr. P:.LczOSa
did not respond to the question. This testimony is relevant and
should have been admitted for the purpose of establishing that
profane and vulgar language was commonly used on the tie gang.
Of greater import, Mr. Paczosa was again asked the question: "Is
it true, Me. Paczosa, that throughout the duration of your gang
that you have singled Mr. Brown out in this method?" and the
witness responded: "I feel that is not pertaining to the insubordination accused." The claimant's representative stated that
if it didn't pertain to this question, the hearing officer would
stop his question.
Mr. Paczosa requested that he be asked the question again, and the
question. was asked: "I asked you if it's not true that you have
singled Mr. Brown out throughout his working for you on this gang?"
Mr. Paczosa responded: "No, I believe thatirrelevant." (Pages
21 and 21 of Transcript).
First, this question is most relevant. It is important for the
Board to know whether or not there is a conflict of personality -
between the claimant herein and the supervisor involved. Secondly,
the hearing officer is the one responsible for determining if a
question is relevant or irrelevant. It is not for the witness to
determine. In this instance the hearing officer should have
direct-·d the witness- to answer the question.
Substantial discipline is justified, but under the circumstances
herein it is the opinion of the Board that permanent dismissal is
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Award No. 15
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harsh, arbitraty and unjust. The Carrier is instructed to reinstate the claimant to work as of March 1, 1988 with seniority and
all other rights unimpaired but %vithoiit pay for time lost.
AIYARD: Claim sustained as per above.
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
DATED: Pcbruary 12, 1.988 _'-,,
,~ -
Preston J. Moore, Chairman
Union Member
. -~?i.?'~
Carrier Member
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