Public Law Board No. 6402, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employees and carrier within the meaning of the Railway Labor Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing thereon and did participate therein.
2011, which was mutually postponed until May 22, 2011, concerning in pertinent part the following charge:
P.L.B. No. 6402On May 27, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level 5, permanent dismissal.
The facts indicate that Claimant along with co-worker, Mr. Moran, were working as Welders on May 3, 2011, near Pearsall, Texas. During their work the Claimant and Mr. Moran had to wait for permission to get onto the track to perform their duties. Once they received permission, Mr. Moran had difficulty properly moving his machine onto the track. It was asserted that Claimant became frustrated and allegedly threatened Mr. Moran with physical assault, while using profanity.
It is the Organization's position that the Carrier did not meet its burden of proof It argued any comments made by the Claimant were made in jest and the Claimant had no intention to physically harm Mr. Moran. It asserted dismissal under the circumstances of the case was wrong because: (I) Claimant was a hard working, ten year career employee; (2) Claimant had no prior history of disciplinary action; (3) that, while he admitted he made the comments, the record revealed that they were made in response to an on-going discussion with his co-worker; and (4) Claimant possessed no intent to harm, injury or anyone. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that Claimant made statements that violate the Carrier's Workplace Violence Policy, which prohibits threatening or aggressive behavior towards another employee. The Claimant's statements also violate Rule 1.6 of the General Code of Operating Rules, which in part states that employees must not be quarrelsome or discourteous. It argued that Claimant's statements made threats of physical violence towards another employee and his hostile misconduct cannot be condoned or ignored, therefore, Level 5-dismissal was warranted. It closed by asking that the claim remain denied.
The Board has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation and appeal process afforded the Claimant his "due process" Agreement rights. P.L.B. No. 6402
The transcript reveals that the Claimant was working with Mr. Moran as Welders on May 3, 2011, near Pearsall, Texas, and at approximately 2:00 p.m. the Claimant and Moran were awaiting permission to get onto the track to perform their duties. After receiving permission, Moran encountered some difficulty in properly moving his machine onto the track. Subsequently, the Claimant became frustrated and threatened Mr. Moran with physical assault, while using profanity. On pages 35 - 37 of the transcript Mr. Moran was questioned about the incident as follows:
And he proceeded to say that, you know something to the effect of, you know there's a lot of trees, there's a lot of woods and bushes out her that I can, you know take you to the side and kick your ass. And I was like okay, where did that come from? I was like - - it just kind of took me by surprise kind of and I was like - - and it sat for a while, you know, and it did just kind of - - and just mulled it over for a while to what actually happened. And that's - -
On page 44 of the transcript, Welder, J. Obregon was questioned as to what he knew about the May 3rd incident. He testified as follows:
On the following page Obregon corrected the aforementioned statement testifying that he did not actually hear the Claimant's comments, however, he verified that Mr. Moran was concerned over what the Claimant had said to him.
On page 58 of the transcript the Claimant was questioned about a written statement that he offered on May 5th regarding the May 3, 2011, incident. He was asked to read his written statement that stated the following:
It is clear from that statement and the testimony of Mr. Moran that the Claimant used threatening language towards the Claimant on May 3, 2011. The Claimant testified that it was just "words" and he did not mean any actual harm. The problem with that argument is that words often reflect intended actions.
Claimant made the situation worse and his argument less tenable on May 4, 2011, when he was pulled out of service for his alleged behavior the previous day by Supervisor Garcia. On this occasion the Claimant could not keep his "words" to himself. On page 52 of the transcript
Mr. Garcia was questioned about the allegation that Claimant had allegedly told his welding gang that if he ever found out who reported the prior behavior, he would "take care o. f them". Garcia stated in pertinent part the following concerning the alleged threat made to the welding gang as they left the Carrier property:
On page 67 of the transcript the Claimant made a closing statement wherein he said in pertinent part:
The record again reflects another admission by the Claimant of inappropriate language used towards employee Moran and it does not indicate any improper behavior on the part of Mr. Moran or that the Claimant had any reason for provocation. Substantial evidence was adduced at the Investigation that the Claimant was guilty as charged.
The only issue remaining is whether the discipline was appropriate. At the time of incident Claimant had approximately 10 years of service with a good work record, however, he committed a serious offense on consecutive days and contrary to his assertion the words that are used are important. The Carrier°s Work Place Violence Policy states in part "...the Company will not tolerate or condone any forms of threats or violence committed by or against employees." The Carrier has an obligation to provide a safe working environment where employees are comfortable in their surroundings and not fearful of their co-workers. Claimant made threatening remarks when he was unhappy with Moran's work and again when he was removed from service. The Board finds and holds the dismissal assessed against the Claimant will not be set aside as it was in accordance with the Carrier"s UPGRADE Discipline Policy and it was not excessive, arbitrary or capricious. The claim will remain denied. P.L.B. No. 6402
