SPECIAL BOARD OF ADJUSTMENT
No. 974
__________________________________________X
United Transportation °
Union (C 8 T), '
Union AWARD NO. 4
V.
. Dispute Concerning
Discharge of Conductor
Metro-North Commuter M. A. Normoyle
Railroad Company, '
Employer'
__________________________________________X
CLAIM:
The Organization's statement of claim is that Conductor ^*1.A. Normoyte
be returned to service with seniority and all otter agreement rights unimpaired and pay for all time lost as a result of carrier's unjust action in
dismissing him from its employ in connection with the following charge:
Falsifying report of a personal injury to yourself when
you called Chief Dispatcher's Office at 10: f7 p.m.,
February 3, 1986, in violation of Rule D of Metro-North
Rules of the Operating Department.
FINDINGS:
The carrier has the burden of proof to show that claimant conductor
M.A. Noc-moyfe falsified a report of personal injury, as charged.
The carrier did not meet that burden.
SBA NO. 9'74 Z Award No. 4
The issue is whether there is sufficient evidence to support the
carrier's charges that claimant conductor NormoyCe falsified a report that
he had bumped his head white looking out a train window, in the station,
checking his train, as he reported by telephone after the completion of
his assignment.
The evidence of record! establishes that on February 3, 1986, at
about 8:40 p.m., at brand Central Terminal in New York, Trainmasterl
Road Foreman James Sorrentino, on claimant conductor Normoyle's train,
was "making train riding reports and employee observations and ! just
happened to be on Train 138".
According to Sorrentino: he was standing in the same car as conductor Normoyle; the conductor was "in the engineer's cab trying to get a
door closing light
and
give the engineer the closing signal",- the cab door
was open; he was standing in the aisle holding the door open with his
left foot; he did not see Normoyie hit his head on the frame of the window;
he was "never in the cab standing next to him at the time of clearance" ;
he did not observe any injury and
did
not get a report from the conductor
that he was hurt; employees are required to report an injury immediately;
he did not check the conductor's timetable prior to departing Grand
Central Terminal "because we had a door problem which had to be corrected
before we could depart requiring Mr. Normoyle's immediate attention°°; he
has received complaints from engineers about the new slide window in
use "that they are not as easy to open and close as we would like them
The parties in the proceedings before this Board added factual information not subject to cross examination or to other usual due process
safeguards in a judicial-like proceeding as, for instance, the investigation on the property of the charge against the claimant where: the
claimant was represented; there was an opportunity for cross
examination; and there was a transcript of the proceedings.
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SBA NQ. 9'74 Award No. 4
4
The
only hard evidence supporting the carrier's charges is that
Sorrentino did not see Normoyle bump his head and that Normoyle did
not then report such bumping to Sorrentino while he was there, or near
the cab.
This evidence is sufficient to raise a question whether such bumping
did occur but without identifying a motive for Narmoyle giving a false
report, such evidence is not sufficient to justify a charge of falsifying
an injury report and, thus, dismissal. 2/
The conductor's account of events is plausible, if not compelling.
The window was small. The conductor was having door troubles.
He was trying to get the train out. A bump on the head sometimes
takes an hour or so to manifest into a visible bump or scratch and headache,
accounting for a later report where the company insists an reports of any
and all injuries, and where the conductor sought no medical assistance and
filed no claim.
3/
2/
At the Board level, it was suggested by carrier advocates :hat
Normoyle made up his injury report to get Sorrentino in trouble for
causing the accident and that Normoyle made up this report to
retaliate against Sorrentino who had written up the conductor previously
for missing or incomplete railroad materials. In a dismissal case on
appeal, such extra-trial representations are entitled to little or no weight.
3
d
Three written, signed, reports from fellow employees were submitted
by union advocates at the Board level of these proceedings. ;one
report stated that Sorrentino was partly in the cab; the two other
reports stated that the reporters saw the bump on Narmoyle's head,
one report being that the employee also saw scratches and dried blood.
These statements suffer from the same limitations as the carrier's
extra-trial representations concerning motive.
SBA NQ. 974
Award No. 4
The carrier was not persuasive that conductor Normoyle had filed a
false report establishing that he was a "dishonest" employee. A charge of
moral turpitude such as this requires much more evidence than was
presented by the carrier. Accordingly, the carrier has not shown there
was just cause to discharge the claimant.
AWARD:
The claim is sustained.
The carrier shall, forthwith, offer to reinstate the claimant, with
seniority and all agreement rights unimpaired. Whether or not the offer is
accepted
by the claimant, the carrier shaft make the claimant whole for
wages lost as a result of his termination from employment,
ae-,
Robert
J b es
Chaff an
tliM. J . Kurt
r-_
Carrier Member
Dated:
E,
.f.
Farfey~
Employee- -Ylember
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Dated:
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