lttc iscn, Tcpuka and Santa Fe Railway
icoast Line0
aRn=KATQR! Gerald =. waliin
The Board, upon the whole record and, on :he evidence, finds uaac the par-tiaa herein are "'airier and Emplayee5 within ;,tie mc;arting of the RailwAy Labor Act, as amandad; that this c3oard is duly conetituted i?y aareement of the parties; that the Board has juriedicticn over the dispute, and that the parties ware given due notice of tut ?:eating.
on Sepzember 12, .*9n, claim,ar= and another employer were involved in an alte:catioa it Window, Ariz^na, There was a history of bad blood between them. I.^. very brief summary, Claimant said the other employee suddenly appeared in front of his slowmoving pickup trunk and threw rocks at it breaking tha windshield arid dciv·~!r' y rid- window. The other employee said C1aimanC attempted to n:xi ::ire down with his truck. A1Ghaugh he admitted throwing the rocks that broke Clalmant's windows, the other employee maintained he was only defending himself. The police were called to inaeacigate. Ar irndependart wicneSs corrolztoratad :ate nthar amployee's version of the altercation. Nono-theaess, both men
Public Law Board Yo. 4941 Award No. 6;lre ^it=d. Claimant was chsr4ed wi-h .endangerment and the other c:Uloyee was charged with damage to property,
it is undisputed that Claimant reported the al;ercation to appropriate .^-a=rLer officials an the same day it occurred.
Apparently Cla3.tn:ant agree.-.3 that th!m charre against the other employee cc·7ald be dismissed before trial ostensibly ac Claimant could get nn with his life. Claimant's charge was not. similarly dismissed. He we-t to t:ial, without a jury, the following year, `1`e zrial resulted 1:1 3 conviction on septefrher 23, 1993. The oarnv-tion was appealed. Apparently the trial. roust failed to properly record the trial - it was discovered that the tapes were blank. As a result, -he cecvicticn was vacated and a new trial was ordered. Thereafter, Claimant's case was routed through a court diversion program. ae wets never re-triad and the charge: again&t him was u:.timately dismissed, For the record, therefore, Claimant was never officially ro:.victed of the charge.
On October 22, 1593, more than one, year after the altercation d carrier's knowledge aL _t, Carrier noti=led claimant to attend n inveotigat_ion to d~G~"wine the facts and place xespcns,bility for attempting tcs cause physical. harm to the other employee.
Following the i :vestigation, actually held 1lovember 19, 1993 after several organization requests far posLpcnernent, Claimant was terarinated ;an December 9, 1§g3.
The 0wganization contended the dlxchara_e was improper on the ground that Claimant seas not affaxded a fair and impartial hearing as required by Article 13(3·, Lb) and :m) rif the applicable Schedule Rules. As a threshold matter, halwevex, the Organizatirr: objected 1-hat Carrier did not co:.duct the ir=vestigalcry hearing within the 10-day time limit required by ,article 12;a).
carrier argued the investigation hearing was scheduled within 3c-days after its first knowledge of the findings freer the court proceedings. It 3150 denied the atY.*r Organization contentions.
Public Lair Board ..No. 4 901it is clear that the incident the Company invi-ratigated was the <3Uercation of September !2, 1,392, which. occurred more than a year earlier. :he Carrier recognized this i>^> its subm,6a_on. Indeed, Carrier e a hearing officer refused to taxe the tea;. imony of witneseas tat did not have first-hand kn-wledge of the aite: satin::. it iv also clear that Carrier's first knowledge of the altercation did not came with claimant's conviction j.r. 1993. _t came the same day as the altercation when Claimant reported it. · The clear and unambiguous language of Artic?e IBCai requ:re3
~C.ais Hoard to f'i:d that Claimant kris disaharled ca.-trary to the pa=ta.rHAgxnemert. The Claim. must, therefore, lee sustained.