Parties
to the
Dispute
PUBLIC LAW BOARD NO. 5664
INTERNATIONAL BROTHERHOOD OF
FIREMEN & OILERS
SYSTEM COUNCIL NO. 6
VS.
NORFOLK SOUTHERN RAILWAY
COMPANY
STATEMENT OF CLAIM
J.E.T. Hampton - Claim for reinstatement to service, and to be made whole
for all time and benefits lost (plus
10% interest) in connection with formal
investigation held January 9, 1995:
dismissed far conduct unbecoming an
employee in that on Friday, December
9, 1994, at approximately 3:05 pm at
the Norris Yard Locomotive facility;
Mr. Hampton made threatening remarks
toward his supervisor Mr. G.L. Turner
and used
vulgar and profane language
in his reference to Mr. Turner.
FINDINGS
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Claimant Joseph Hampton was called to an investigation that
was held on January 9, 1995, into the charge of conduct unbecoming an employs. Carrier alleged that on December 9, 1994, Mr.
Hampton had made threatening remarks in a conversation with one
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Award No. 12
2
General Foreman (Loughner) in reference to another General
Foreman (Turner) and had used profane and vulgar language in
doing so. Following the hearing, the charge was sustained and
Claimant was dismissed from service.
Carrier produced sufficient probative evidence at the
hearing to support its charge. The Hearing officer elected to
credit the testimony of General Foreman Loughner that Claimant,
who felt aggrieved because of the way in which his pay was
handled, had stated, in reference to Mr. Turner, that if Mr.
Turner was "here today, he wouldn't be here tomorrow. I'd take
his mother fucking ass out." Claimant allegedly repeated this
threat, using equally graphic language.
Numerous Boards in the industry have held that Hearing
Officers are in the best position to weigh the credibility of
witnesses, judging their demeanor as well as consistencies in
their testimony. In the absence of compelling evidence to the
contrary, these Boards are reluctant to second guess their
judgments.
The organization writes off Claimant's comments as nothing
more than shop talk and argues that Claimant in no way acted in a
threatening manner. Carrier, on the other hand, contends that it
cannot.afford to treat life threatening comments lightly, even if
the intended "victim" is not present. It is charged with the
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Award No. 12
3
safety of all of its employes and must act
quickly to
avoid any
real injury.
Carrier's vigilance was appropriate in this instance. At
the same time, while Claimant's comments were clearly intemperate
and totally unacceptable by any standard, regardless if one
employe is referring to a coworker, or to a supervisor, as was
the case here, this Board is willing to credit the Organization's
argument in Claimant's defense that no malice was involved.
Because of all of the circumstances of this case, this Board
directs that Claimant be restored to service, with the proviso
that he attend and complete a counselling program approved by
Management designed to deal with situations such as this.
Claimant should be made aware of the fact that there is an
established procedure to handle any grievances employes may have
over pay
and other
terms and conditions of employment. These
mechanisms should be utilized. Resort to threats and the use of
vulgar and profane language in the process of making such threats
will not be condoned. Claimant's failure to heed this admonishment will most assuredly result in his permanent separation from
service in the future.
AWARD
Claim sustained in part and denied
in part. Within thirty days of the
approval of this Award, Claimant shall
be returned to service with seniority
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Award No. 12
and other rights intact but without
backpay. His continued employment is
contingent upon his attending and completing a counselling program approved
by carrier.
C.H. G d,
Neutral tirma
,40
-1
D.S. Anderson, Jr.,
Employe Member
Da a
of
Approval
T M. Malloy,
Carrier Member
